US v. Arnold Burleson
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 1:13-cr-00070-CCE-1,1:13-cv-01158-CCE-LPA. [999769894]. [15-6589]
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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.
Harris wrote the opinion, in which Judge Gregory and
Judge Davis joined.
Judge
Senior
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.
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PAMELA HARRIS, Circuit Judge:
Arnold
Paul
Burleson
was
convicted
of
Carolina felony offenses between 1964 and 1985.
several
North
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).
months
after
his
sentence
was
imposed,
Burleson
Several
filed
a
28
U.S.C. § 2255 motion asserting that he was actually innocent of
the § 922(g) offense.
rights
had
been
According to Burleson, because his civil
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
assault.
elderly
When
male
police
with
a
arrived
at
handgun
the
Burleson and asked if he had a weapon.
2
was
scene,
committing
they
an
discovered
Burleson admitted that
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he
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did
and
Burleson
was
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produced
a
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Taurus
subsequently
.357
indicted
Magnum
by
a
caliber
federal
handgun.
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
conviction on his record.
predicate
conviction
imprisonment
for
a
as
term
must
have
an
underlying
felony
Section 922(g) defines a qualifying
one
for
exceeding
“a
crime
punishable
one
year.”
by
§ 922(g)(1).
Violations of § 922(g) ordinarily carry a maximum sentence of
ten years’ imprisonment and no mandatory minimum.
§ 924(a)(2).
18 U.S.C.
But when a defendant has at least three previous
convictions for certain “crime[s] punishable by imprisonment for
a
term
exceeding
one
year,”
the
minimum sentence of fifteen years.
ACCA
calls
for
a
mandatory
§ 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
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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
pointed
to
the
1986
Firearms
For the first time, Burleson
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
1
such . . . restoration
of
Because 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
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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
explained
exclusion
in
his
is
critical
§ 2255
motion,
here
his
because,
civil
as
rights
Burleson
were
fully
restored by operation of state law in 1993, almost two decades
before
the
2012
arrest
that
led
possession charge under § 922(g).
to
his
federal
felon-in-
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
unconditionally
rights
restored
by
See id. § 14–415.1 (1975).
civil
rights
were
also
were
operation
of
automatically
North
Carolina
and
law.
So as of 1993, Burleson argued, his
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
5
prior
state
convictions
from
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serving as predicates for a federal felon-in-possession charge.
But
according
to
§ 921(a)(20)’s
the
“unless
government,
clause”
—
what
under
matters
which
a
under
conviction
subject to civil rights restoration may continue to serve as a
predicate
if
restriction
“such
on
restoration”
firearm
rights
“expressly
—
is
not
provides”
whether
for
a
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
agreed
Carolina
with
statute
the
at
government
issue
that
here,
in
the
magistrate
determining
judge
whether
a
restoration of civil rights provides for a firearm restriction
6
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under
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§ 921(a)(20)
qualifies
as
and
thus
whether
predicate
a
—
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under
a
prior
§ 922(g)
—
a
conviction
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,
decisions,
like
the
recommendation
conviction.
the
district
and
But
magistrate
court
denied
the
judge,
adopted
Burleson’s
district
court
on
the
our
unpublished
magistrate
motion
issued
to
a
judge’s
vacate
his
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
7
limits
the
class
of
prior
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convictions that may serve as predicates for a federal felon-inpossession 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.
constitutes
“shall
be
jurisdiction
See
a
§ 921(a)(20).
conviction”
determined
in
which
in
the
for
Under
purposes
accordance
[prior
2
the
of
with
criminal]
Act,
those
the
“[w]hat
provisions
law
of
proceedings
the
were
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
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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
firearms.”
may
not
ship,
transport,
possess,
or
receive
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
applicable.
Cir. 1990).
“restored”
and
if
a
firearm
restriction
is
See United States v. McLean, 904 F.2d 216, 218 (4th
Here, nobody disputes that under the “whole of
state law,” Burleson’s civil rights were indeed restored without
any
firearm
restriction
in
1993,
many
arrest that gave rise to this case.
end of the matter:
years
before
the
2012
For Burleson, that is the
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
9
Burleson
may
not
possess
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firearms.
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So this case boils down to one question:
§ 921(a)(20)’s
“unless
clause,”
do
we
look
to
In applying
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.”
2001)
United States v. Osborne, 262 F.3d 486, 491 (5th Cir.
(holding
§ 921(a)(20)
must
be
that
inquiry).
linked
to
law
By
the
at
time
stating
of
that
restoration
restoration
firearm
itself,
governs
restrictions
§ 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.”
10
See United States v. Cardwell,
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967 F.2d 1349, 1350–51 (9th Cir. 1992) (holding that law at time
of restoration governs § 921(a)(20) inquiry).
Congress
could
government’s
have
position,
enacted
a
providing
statute
that
effectuating
restoration
of
the
a
defendant’s civil rights precludes use of a prior conviction
“unless
current
restriction.
state
But
law
that
is
expressly
not
what
provides”
the
for
statute
a
firearm
says.
See
Osborne, 262 F.3d at 491 (statute “does not read ‘unless state
law
expressly
provides
firearms’”).
that
Instead,
restoration”
must
restriction,
and
the
Congress
“expressly
that
person
may
specified
provide[]”
language
makes
it
not
possess
that
for
clear
“such
a
firearm
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
firearm
of
state
restriction
arrested
questions.
in
2012.
law”
includes
the
that
was
in
effect
But
that
conflates
1995
when
two
North
Carolina
Burleson
very
was
different
The first is whether courts may consult not only the
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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.
noted
above,
our
court
has
answered
that
question
in
As
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
later changes in the law.”
were
restored,
without
reference
to
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
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person’s
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§ 922(g)
concluded,
when,
arrest
as
Pg: 13 of 17
may
here,
“a
be
“problematic,”
state
restores
a
the
felon’s
rights and then changes its law after the restoration.”
969.
We think so, too.
court
civil
Id. at
North Carolina is entitled, of course,
to pass retroactive legislation that alters a felon’s right to
possess firearms under state law.
§ 921(a)(20),
restored
once
ceases
a
to
conviction
count
as
But under the plain text of
for
a
which
rights
predicate
for
have
been
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
in
States
v.
Haynes,
we
encountered the same temporal sequence we confront today:
A
clause, not the government’s.
In
our
defendant’s
1992
civil
decision
rights
United
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.
961 F.2d at 51–52.
See
As here, the government argued that the
13
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defendant’s
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prior
felony
Pg: 14 of 17
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
argument
state
because
“at
statute.
the
Id.
time
that
But
[the
we
rejected
defendant’s]
that
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
agreed — that the case is distinguishable.
government,
Haynes
§ 921(a)(20)’s
concerns:
enactment
amounted
unless
West
prospectively
to
to
rests
not
clause
Virginia’s
only,
limit
and
a
so
but
laws
an
are
interpretation
on
on
firearm
a
to
operate
post-restoration
rights
In
of
retroactivity
presumed
retroactivity.
court
According to the
instead
relying
defendant’s
impermissible
on
district
would
have
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
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115, 121 n.6 (4th Cir. 1999).
opinions
on
which
relied,
both
of
the
which
Pg: 15 of 17
And there are the two unpublished
magistrate
involve
judge
the
and
same
district
1995
North
court
Carolina
statutory restriction at issue in this case, and both of which
adopt
the
government’s
mentioning Haynes.
11,
16–17
(4th
view
of
§
921(a)(20)
without
even
See United States v. Hairston, 364 F. App’x
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.”
(emphasis
added).
Haynes
does
3
acknowledge
961 F.2d at 53
West
Virginia’s
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
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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.
there
any
doubt,
it
is
worth
noting
that
the
But were
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
clause.
See
are
restored
Osborne,
262
in
applying
F.3d
at
491
§ 921(a)(20)’s
&
nn.18,
20
unless
(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).
16
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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.
cannot
remain
innocent.
convicted
of
a
crime
of
which
he
is
He
actually
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
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