Filed: Feb. 19, 2016
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-7107 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RICHARD LEE ADAMS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, Chief District Judge. (5:08-cr-00004-D-1; 5:12-cv-00577-D) Argued: December 9, 2015 Decided: February 19, 2016 Before MOTZ and FLOYD, Circuit Judges, and John A. GIBNEY, Jr., United States District Judge for th
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-7107 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RICHARD LEE ADAMS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, Chief District Judge. (5:08-cr-00004-D-1; 5:12-cv-00577-D) Argued: December 9, 2015 Decided: February 19, 2016 Before MOTZ and FLOYD, Circuit Judges, and John A. GIBNEY, Jr., United States District Judge for the..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7107
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICHARD LEE ADAMS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:08-cr-00004-D-1; 5:12-cv-00577-D)
Argued: December 9, 2015 Decided: February 19, 2016
Before MOTZ and FLOYD, Circuit Judges, and John A. GIBNEY, Jr.,
United States District Judge for the Eastern District of
Virginia, sitting by designation.
Vacated by published opinion. Judge Floyd wrote the opinion, in
which Judge Motz and Judge Gibney joined.
ARGUED: Marianna F. Jackson, COVINGTON & BURLING, LLP,
Washington, D.C., for Appellant. Christopher Michael Anderson,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee. ON BRIEF: Robert A. Long, COVINGTON & BURLING,
LLP, Washington, D.C., for Appellant. Thomas G. Walker, United
States Attorney, Jennifer P. May-Parker, Seth M. Wood, Assistant
United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.
FLOYD, Circuit Judge:
Appellant Richard Lee Adams (Adams) challenges his
conviction for being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g). Adams argues that he is
actually innocent of the § 922(g) offense because he was not, at
the time of the offense, a convicted felon. We agree and
accordingly vacate his conviction and direct entry of judgment
in his favor.
I.
On January 2, 2008, a grand jury returned an eight count
indictment against Adams alleging that he committed a series of
armed robberies of convenience stores. In May 2009, Adams
pleaded guilty pursuant to a written plea agreement to three of
the eight counts: (1) robbery in violation of 18 U.S.C. § 1951
(Count 2); (2) using and carrying a firearm during a crime of
violence in violation of 18 U.S.C. § 924(c) (Count 3); and (3)
being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g) (Count 8). The plea agreement contained a
provision in which Adams waived his right to challenge his
conviction or sentence in a motion pursuant to 28 U.S.C. § 2255
unless he did so on the basis of ineffective assistance of
counsel or prosecutorial misconduct. Before accepting Adams’s
guilty plea, the district court held a colloquy pursuant to
2
Federal Rule of Criminal Procedure 11. The district court
singled out the waiver provision “in particular” and read it to
Adams. J.A. 50. Adams indicated that he understood the
appellate and collateral attack rights he was giving up as part
of his plea agreement. In exchange for the concessions made by
Adams in the plea agreement, the government agreed to dismiss
the remaining five counts of the indictment relating to other
armed robberies.
The district court held a sentencing hearing on October 23,
2009. Based on a total offense level of 23 and a criminal
history category of IV, the district court determined the
Sentencing Guidelines range as to Counts 2 and 8 to be 70 to 87
months imprisonment and as to Count 3 to be 120 months
imprisonment to run consecutively with any term of imprisonment
imposed with regard to Counts 2 and 8.
After a motion by the government, the court departed upward
at sentencing. The district court sentenced Adams to a term of
imprisonment of 120 months as to Counts 2 and 8 to run
concurrently and a sentence of 120 months as to Count 3 to run
consecutively to the sentences imposed in Counts 2 and 8.
Adams’s total sentence was, therefore, 240 months imprisonment.
The court detailed its rationale for the upward departure in a
written order issued on October 30, 2009. Adams appealed his
sentence. This Court affirmed both his conviction and his
3
sentence on January 3, 2011. United States v. Adams, 416 F.
App’x 233 (4th Cir. 2011).
On August 28, 2012, Adams filed a motion pursuant to 28
U.S.C. § 2255 to vacate his § 922(g) conviction as a felon in
possession of a firearm. Adams argued that none of his prior
convictions—all of which were under North Carolina law—were
felonies after our decision in United States v. Simmons, 649
F.3d 237 (4th Cir. 2011) (overruling United States v. Harp,
406
F.3d 242 (4th Cir. 2005)), and that he was, therefore, actually
innocent of being a felon in possession of a firearm. In
Simmons, we held that for an offense to be a prior felony under
North Carolina’s Structured Sentencing Act as then written, a
defendant must have actually faced the possibility of more than
a year in
prison. 649 F.3d at 244-45. In other words, the
government could not rely on hypothetical enhancements to
determine the maximum term of imprisonment.
Id. at 248-49.
Adams further alleged that his attorneys were ineffective for
failing to anticipate our ruling in Simmons.
The district court issued an order dismissing Adams’s
§ 2255 motion on July 1, 2013. The court determined that the
substantive Simmons-related claims Adams presented were barred
by the waiver in his plea agreement. The court also determined
that Adams suffered no prejudice from any Simmons-related error
because even if his § 922(g) conviction were vacated, Adams
4
would still be required to serve a sentence of 240 months in
prison. 1 With respect to Adams’s ineffective assistance of
counsel claims, the district court determined that Adam’s
attorneys were not ineffective for counselling him in then-
applicable law. Further, the court again noted that it would
have issued the same sentence even had Simmons applied, so Adams
could not make the requisite showing of prejudice. The district
court denied a certificate of appealability. Adams appealed
nonetheless.
This Court granted Adams a certificate of appealability on
the issue of whether Adams’s waiver in his plea agreement barred
consideration of his claim that Simmons rendered him actually
innocent of the § 922(g) conviction. We conclude that Adams’s
claim of actual innocence is outside the scope of the appellate
1 The government wisely does not press this argument on
appeal. Appellee’s Br. 26. Felony convictions carry a myriad
of collateral consequences above and beyond time in prison,
including the possibility that a future sentence will be
enhanced based on the challenged conviction, the possibility of
using the conviction for future impeachment, and societal
stigma. Rutledge v. United States, 517 U.S. 292, 302 (1996).
Adams’s § 922(g) conviction also carried with it a mandatory
special assessment which constituted additional punishment that
would not have been imposed absent a conviction. See
id. at
301-03. Because an erroneous conviction and accompanying
sentence, even a concurrent sentence, can have significant
collateral consequences, the fact that Adams’s sentence would
not change does not bar his claim. See Guam v. Torre,
68 F.3d
1177, 1180 (9th Cir. 1995) (“The law is plain that multiple
convictions, apart from concurrent sentences, carry adverse
collateral consequences that may not be ignored.” (internal
quotations and citation omitted)).
5
waiver, and, for the reasons explained below, we also conclude
that Adams is indeed actually innocent.
II.
A.
We first examine whether Adams entered a valid waiver. The
validity of a waiver of appeal and collateral attack rights is
reviewed de novo, and we will enforce the waiver if it is valid
and the issue appealed is within the scope of the waiver.
United States v. Copeland, 707 F.3d 522, 529 (4th Cir. 2013). A
waiver must be knowing and voluntary. United States v.
Lemaster,
403 F.3d 216, 220 (4th Cir. 2005). In the absence of
extraordinary circumstances, a properly conducted Rule 11
colloquy establishes the validity of the waiver.
Id. at 221.
Here, neither party argues that Adams’s waiver was invalid, and
there is no evidence in the record to support such a conclusion.
Rather, the issue is whether Adams’s Simmons-based claim is
within the scope of the valid waiver in his plea agreement.
We have previously held that a Simmons-based challenge to a
sentence falls within the scope of a valid appeal waiver.
Copeland, 707 F.3d at 529-30. A waiver remains valid even “in
light of a subsequent change in the law.”
Id. at 529 (citing
United States v. Blick,
408 F.3d 162 (4th Cir. 2005)).
6
Copeland, however, does not render all collateral
challenges automatically within the scope of a valid waiver
merely because such a challenge invokes Simmons. We will refuse
to enforce an otherwise valid waiver if to do so would result in
a miscarriage of justice. United States v. Johnson, 410 F.3d
137, 151 (4th Cir. 2005). “A proper showing of ‘actual
innocence’ is sufficient to satisfy the ‘miscarriage of justice’
requirement.” Wolfe v. Johnson,
565 F.3d 140, 160 (4th Cir.
2009) (explaining the meaning of “miscarriage of justice” in the
context of procedural default). Such a showing renders the
claim outside the scope of the waiver. Thus, if we determine
that Adams has made a cognizable claim of actual innocence,
Adams’s § 2255 motion falls outside the scope of his waiver.
Miller v. United States, 735 F.3d 141 (4th Cir. 2013)—a
case cited by neither party—settles the key issue in this case:
whether Adams properly alleges that he is actually innocent of
the § 922(g) conviction. In Miller, a defendant filed a § 2255
petition claiming that his § 922(g) conviction should be
vacated because, after Simmons, his predicate North Carolina
convictions were no longer felonies. We agreed and ordered the
district court to grant Miller’s § 2255 motion, holding that
Simmons announced a substantive rule retroactively applicable.
Miller, 735 F.3d at 145-46. We concluded:
7
For defendants convicted of possessing a
firearm by a convicted felon under 18 U.S.C.
§ 922(g)(1), where the predicate
conviction(s) supporting their § 922(g)(1)
convictions were North Carolina felony
offenses for which they could not have
received sentences of more than one year in
prison, Simmons also makes clear that those
felony convictions do not qualify as
predicate felonies for purposes of federal
law, and those defendants are actually
innocent of the § 922(g)(1) offense of which
they were convicted.
Id. at 146 (emphasis added). Adams makes exactly the same claim
as Miller; like Miller, Adams makes a valid claim of actual
innocence. Therefore, in keeping with our precedent and to
prevent a miscarriage of justice, we conclude Adams’s claim is
outside the scope of his appeal waiver. The district court
erred in dismissing Adams’s claim as barred by the waiver
provision in the plea agreement.
B.
Having determined that Adams’s actual innocence claim is
outside the scope of his appeal waiver, we reach the merits of
his § 2255 motion. The government makes two arguments against
Adams’s claim of actual innocence, both of which rely on the
Supreme Court’s decision in Bousley v. United States, 523 U.S.
612 (1998). First, the government contends that although Adams
may have shown “legal innocence” he has not shown “factual
innocence.” Second, the government contends that Adams had not
8
shown that he is also actually innocent of the conduct alleged
in the five dismissed counts of the indictment.
In Bousley the Supreme Court observed that actual innocence
“means factual innocence, not mere legal insufficiency.” Id. at
623. The government contends that although Adams may no longer
be legally convicted of a violation of § 922(g) after Simmons,
he remains, nonetheless, somehow still factually guilty.
We find this argument to be without merit. “To show a
§ 922(g)(1) violation, the government must prove three elements:
(i) that the defendant was a convicted felon at the time of the
offense; (ii) that he voluntarily and intentionally possessed a
firearm; and (iii) that the firearm traveled in interstate
commerce at some point.” United States v. Gallimore, 247 F.3d
134, 136 (4th Cir. 2001) (quotation marks and citation omitted).
The government recognizes that Adams lacks the required
predicate felony for conviction under § 922(g)(1) following
Simmons. Appellee’s Br. 10. Under our holding in Simmons,
Adams was not a convicted felon at the time of the offense, and
it was therefore not a violation of § 922(g)(1) for Adams to be
in possession of a firearm. We conclude that Adams has, indeed,
shown “factual innocence” as contemplated by Bousley because he
has shown that it is impossible for the government to prove one
of the required elements of a § 922(g)(1) charge—that the
9
defendant was a convicted felon at the time of the offense.
This is so because Adams was “in fact” not a felon.
In addition to requiring a showing of factual innocence,
the Supreme Court in Bousley set out an additional requirement:
“[i]n cases where the Government has forgone more serious
charges in the course of plea bargaining, petitioner’s showing
of actual innocence must also extend to those charges.” 523
U.S. at 624. The government argues that a showing of factual
innocence as to the § 922(g) charge is insufficient to support
vacating Adams’s conviction. Instead, the government urges us
to read the above-quoted language from Bousley to require that
Adams show that he is also factually innocent of the charges
contained in the five dismissed counts of the indictment.
The facts of Bousley are instructive here and counsel
against adoption of the government’s reading of the case. In
Bousley, Kenneth Bousley pleaded guilty to “using” a firearm in
violation of 18 U.S.C. § 924(c)(1). Bousley, 523 U.S. at 616.
After Bousley pleaded guilty, the Supreme Court construed
§ 924(c)(1)’s “use” prong to require the government to show
“active employment of the firearm.” Bailey v. United States,
516 U.S. 137, 144 (1995). Bousley challenged his conviction via
a motion pursuant to § 2255 and alleged that he was actually
innocent of “using” a firearm as the Supreme Court had defined
“use” in Bailey.
Bousley, 523 U.S. at 623. The government
10
argued before the Supreme Court that Bousley had to show that he
was actually innocent of both “using” and of “carrying” a
firearm, both violations of § 924(c)(1), in order to show that
he was actually innocent of his conviction under that provision.
Id. at 624. Because the indictment charged Bousley only with
“using” a firearm and there was no record evidence that the
government “elected not to charge” Bousley with “carrying” a
firearm in exchange for his plea of guilty, the Supreme Court
concluded Bousley needed to “demonstrate no more than that he
did not ‘use’ a firearm. . .” as charged in the indictment.
Id.
The Supreme Court concerned itself with whether Bousley’s
conduct violated § 924(c), a statute criminalizing using,
carrying, or possessing a firearm in relation to any crime of
violence or drug trafficking crime. All of the Supreme Court’s
analysis related to what Bousley had to show to prove actual
innocence of his § 924(c) crime of conviction. In other words,
the Court focused on one instance of criminal conduct: whether
Bousley violated § 924(c) by using, carrying, or possessing a
firearm.
Our decision in Lyons v. Lee, 316 F.3d 528 (4th Cir.
2003), employs a similar conduct-based approach. In Lyons we
noted that to show actual innocence a defendant convicted of
common law robbery after a guilty plea must also show factual
innocence of the more serious, original charge of armed robbery.
11
Id. at 533 n.5. Thus, the actual innocence inquiry in Lyons
focused on the underlying criminal conduct of robbery, just as
Bousley focused on underlying criminal conduct relating to
firearms.
Perhaps the criminal conduct inquiry can best be
illustrated by a hypothetical. Consider a defendant who is
charged with second-degree murder, a homicide crime, but who
later negotiates a plea bargain whereby he pleads guilty to
voluntary manslaughter. Under Bousley, if that defendant later
wishes to attack his guilty plea to the lesser crime with a
claim of actual innocence, he must show that he is factually
innocent of the second-degree murder charge as well as the
voluntary manslaughter charge to which he pleaded guilty. In
other words, a defendant making a claim of actual innocence
after a negotiated guilty plea must show that he is factually
innocent of the underlying criminal conduct—use of a firearm in
Bousley, robbery in Lyon, and homicide in the above
hypothetical. Here, the dismissed counts related to separate
allegations of different criminal conduct. Neither Bousley nor
Lyons nor common sense requires Adams to show that he is
actually innocent of other, dissimilar charged conduct in order
to show that he is actually innocent of being a felon in
possession of a firearm, when he was not, in fact, a convicted
felon when he possessed the firearm.
12
We conclude Adams has made the requisite showing of actual
innocence, and we will, therefore, grant his § 2255 motion and
vacate his § 922(g) conviction.
III.
Finally, we are compelled to note our concern with the
government’s suggestion at oral argument and again in briefing
after argument, that, if we vacate Adams’s § 922(g) conviction
because we conclude Adams is actually innocent of the crime of
conviction, the government would seek to reinstate the dismissed
counts against Adams pursuant to 18 U.S.C. § 3296 and would seek
to add at least an additional fifty years to Adams’s current
sentence of twenty years in prison. 2 The government indicated it
may seek to add the additional fifty years even though nothing
in our opinion today requires the district court to lessen
Adams’s current sentence of twenty years imprisonment.
Indeed, in the event we reached the holding we reach today,
the government asked us to reinstate the dismissed charges of
the indictment. Appellee’s Br. 26. We decline to do so. The
government treads dangerously close to punishing Adams for
2Indeed, Adams was concerned enough about this possibility
that he asked us to defer our ruling beyond January 21, 2016 to
allow him to consult with counsel about whether the pursuit of
this appeal was worth the risk of five decades additional
imprisonment. As this opinion is issued after January 21, we
hereby deny Adams’s motion as moot.
13
pursuing what we have ultimately determined to be a meritorious
claim of actual innocence. “To punish a person because he has
done what the law plainly allows him to do is a due process
violation of the most basic sort.” United States v. Goodwin,
457 U.S. 368, 372 (1982) (citation and quotation marks omitted).
Just as the criminal justice system must see the guilty
convicted and sentenced to a just punishment, so too it must
ferret out and vacate improper convictions. Because Adams was
not a convicted felon at the time of the charged offense, it was
not illegal under § 922(g) for him to possess a firearm. He
should not remain convicted of a crime of which he is, under our
precedent in Simmons and Miller, actually innocent. We vacate
Adams’s § 922(g) conviction and its attendant sentence and
special assessment. We direct the entry of judgment in favor of
Adams on his § 2255 motion without remand.
VACATED
14
