US v. Arnold Burleson


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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Appeal: 15-6589 Doc: 45 Filed: 03/08/2016 Pg: 1 of 17 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. Appeal: 15-6589 Doc: 45 Filed: 03/08/2016 Pg: 2 of 17 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 Appeal: 15-6589 he Doc: 45 did and Burleson was Filed: 03/08/2016 produced a Pg: 3 of 17 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 Appeal: 15-6589 Doc: 45 Filed: 03/08/2016 Pg: 4 of 17 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 Appeal: 15-6589 Doc: 45 Filed: 03/08/2016 Pg: 5 of 17 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 Appeal: 15-6589 Doc: 45 Filed: 03/08/2016 Pg: 6 of 17 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 Appeal: 15-6589 under Doc: 45 Filed: 03/08/2016 § 921(a)(20) qualifies as and thus whether predicate a — Pg: 7 of 17 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 Appeal: 15-6589 Doc: 45 Filed: 03/08/2016 Pg: 8 of 17 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 Appeal: 15-6589 Doc: 45 Filed: 03/08/2016 Pg: 9 of 17 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 Appeal: 15-6589 Doc: 45 firearms. Filed: 03/08/2016 Pg: 10 of 17 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, Appeal: 15-6589 Doc: 45 Filed: 03/08/2016 Pg: 11 of 17 967 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 11 Appeal: 15-6589 Doc: 45 Filed: 03/08/2016 Pg: 12 of 17 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 Appeal: 15-6589 Doc: 45 person’s Filed: 03/08/2016 § 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 Appeal: 15-6589 Doc: 45 defendant’s Filed: 03/08/2016 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 Appeal: 15-6589 Doc: 45 Filed: 03/08/2016 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 Appeal: 15-6589 Doc: 45 Filed: 03/08/2016 Pg: 16 of 17 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 For these federal-law Appeal: 15-6589 Doc: 45 Filed: 03/08/2016 Pg: 17 of 17 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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