Argued May 14, 2014.
Appeal from the United States District Court for the Western District of North Carolina, at Statesville. (5:99-cr-00011-RLV-3; 5:12-cv-00021-RLV). Richard L. Voorhees, District Judge.
Stephanie D. Taylor,
JONES DAY, Pittsburgh, Pennsylvania, for Appellant.
William Michael Miller, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Lawrence D. Rosenberg,
JONES DAY, Washington, D.C., for Appellant.
Anne M. Tompkins, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Before GREGORY and THACKER, Circuit Judges, and DAVIS, Senior Circuit Judge. Senior Judge Davis wrote the opinion, in which Judge Gregory and Judge Thacker joined.
DAVIS, Senior Circuit Judge:
Appellant Robert Earl Hairston pled guilty to conspiracy to possess with intent to distribute narcotics in 2003. He was sentenced to 324 months based on a Sentencing Guidelines range of 324-405 months, taking into account his category IV criminal history. In 2012, after a state court vacated one of his convictions which contributed to his criminal history category, Hairston filed a motion pursuant to 28 U.S.C. § 2255, not his first one, arguing that the vacatur lowered his criminal history to category III resulting in a lower Guidelines range. The district court dismissed the claim under 28 U.S.C. § § 2244(b)(3)(A) and 2255(h), holding that Hairston did not meet the requirements of a permissible second or successive motion to vacate. We hold that Hairston's motion
is not successive; accordingly, we reverse ...