United States v. Adams

• Decision Date: 19 February 2016
• Docket Number: No. 13–7107.,13–7107.
• Citation: 814 F.3d 178
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Richard Lee ADAMS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

814 F.3d 178

UNITED STATES of America, Plaintiff–Appellee,

v.Richard Lee ADAMS, Defendant–Appellant.

No. 13–7107.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 9, 2015.

Decided: Feb. 19, 2016.

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.

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.

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 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 sentence on January 3, 2011. United States v. Adams, 416 Fed.Appx. 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 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 Adams'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 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) ).

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:

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. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (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 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...