US v. Richard Adam

Filing

PUBLISHED AUTHORED OPINION filed. Motion disposition in opinion denying Motion to defer [999723964-2] Originating case number: 5:08-cr-00004-D-1,5:12-cv-00577-D. [999758075]. [13-7107]

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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.

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FLOYD, Circuit Judge:
Appellant
conviction
violation

Richard

for
of

being

18

a

U.S.C.

Lee

Adams

felon
§

in

(Adams)

possession

922(g).

Adams

challenges
of

a

argues

his

firearm
that

in

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.

§

provision

922(g)
in

(Count

which

8).

Adams

The

waived

plea
his

agreement

right

to

contained

challenge

a

his

conviction or sentence in a motion pursuant to 28 U.S.C. § 2255
unless

he

did

so

on

the

basis

of

ineffective

counsel or prosecutorial misconduct.
guilty

plea,

the

district

court
2

held

assistance

of

Before accepting Adams’s
a

colloquy

pursuant

to

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Federal

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Rule

of

Criminal

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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

history

on

category

a

total
of

offense

IV,

the

level

of

district

23

court

and

a

criminal

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.
imprisonment

The district court sentenced Adams to a term of

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.
sentence.

This

Court

affirmed
3

both

his

Adams appealed his
conviction

and

his

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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

were

of

which

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.
government
determine

could
the

649 F.3d at 244-45. In other words, the
not

rely

maximum

term

on

hypothetical

of

imprisonment.

enhancements
Id.

at

to

248-49.

Adams further alleged that his attorneys were ineffective for
failing to anticipate our ruling in Simmons.
The

district

court

issued

an

§ 2255 motion on July 1, 2013.

order

dismissing

Adams’s

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
4

were

vacated,

Adams

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would still be required to serve a sentence of 240 months in
prison. 1
counsel
attorneys

With
claims,
were

applicable law.

respect
the
not

to

Adams’s

district

ineffective

court

ineffective

for

assistance

determined
counselling

that
him

in

of

Adam’s
then-

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.
court denied a certificate of appealability.

The district

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)).
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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).
waiver

must

be

knowing

and

voluntary.

United

Lemaster, 403 F.3d 216, 220 (4th Cir. 2005).
extraordinary

circumstances,

a

properly

States

A
v.

In the absence of
conducted

colloquy establishes the validity of the waiver.

Rule

11

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

Copeland, 707 F.3d at 529-30.

of

a

valid

appeal

waiver.

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)).

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Copeland,
challenges

however,

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does
within

automatically

not
the

render
scope

all

of

merely because such a challenge invokes Simmons.

a

collateral
valid

waiver

We will refuse

to enforce an otherwise valid waiver if to do so would result in
a miscarriage of justice.
137,

151

(4th

Cir.

United States v. Johnson, 410 F.3d

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

claim outside the scope of the waiver.

a

that

Adams

Adams’s

has

made

a

cognizable

claim

showing

renders

the

Thus, if we determine
of

actual

innocence,

§ 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.
petition
vacated

claiming
because,

In Miller, a defendant filed a § 2255

that

after

his

§

Simmons,

922(g)
his

convictions were no longer felonies.

conviction

predicate

should

North

be

Carolina

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:

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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.
erred

in

dismissing

Adams’s

claim

as

The district court

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).
may

have

First, the government contends that although Adams

shown

innocence.”

“legal

innocence”

he

has

not

shown

“factual

Second, the government contends that Adams had not
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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.”
623.

Id. at

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

commerce at some point.”

the

firearm

traveled

in

interstate

United States v. Gallimore, 247 F.3d

134, 136 (4th Cir. 2001) (quotation marks and citation omitted).
The

government

recognizes
for

that

predicate

felony

conviction

Simmons.

Appellee’s Br. 10.

Adams
under

lacks
§

the

required

922(g)(1)

following

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

9

§

922(g)(1)

charge—that

the

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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.”
U.S. at 624.

523

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).
After
§

Bousley

924(c)(1)’s

pleaded
“use”

guilty,

prong

to

the

require

“active employment of the firearm.”
516 U.S. 137, 144 (1995).

Bousley, 523 U.S. at 616.
Supreme
the

Court

government

construed
to

show

Bailey v. United States,

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.
10

The government

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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.
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Id. at 533 n.5.

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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
illustrated

the
by

a

criminal

conduct

hypothetical.

inquiry

Consider

a

can

best

defendant

who

be
is

charged with second-degree murder, a homicide crime, but who
later

negotiates

a

plea

voluntary manslaughter.

bargain

whereby

he

pleads

guilty

to

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

hypothetical.

in

Lyon,

and

homicide

nor

the

above

Here, the dismissed counts related to separate

allegations of different criminal conduct.
Lyons

in

common

sense

requires

Adams

Neither Bousley nor
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.
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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.
government

Appellee’s Br. 26.

treads

dangerously

close

2

We decline to do so.
to

punishing

Adams

The
for

Indeed, 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.
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pursuing what we have ultimately determined to be a
claim of actual innocence.

meritorious

“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.
Adams’s

§

922(g)

special assessment.

conviction

and

its

attendant

We vacate

sentence

and

We direct the entry of judgment in favor of

Adams on his § 2255 motion without remand.
VACATED

14