Argued: September 26, 2018
from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn,
Jr., District Judge. (3:03-cr-00040-MOC-1; 3:12-cv-00434-MOC)
Hester, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
Charlotte, North Carolina, for Appellant.
Anthony J. Enright, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.
Hall Richardson, Interim Federal Public Defender, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant.
Westmoreland Rose, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for
GREGORY, Chief Judge, and NIEMEYER and AGEE, Circuit Judges.
NIEMEYER, CIRCUIT JUDGE:
August 2003, Darius Latron Chaney pleaded guilty pursuant to
a plea agreement to (1) carjacking, in violation of 18 U.S.C.
§ 2119; (2) use of a firearm in furtherance of a crime
of violence, in violation of 18 U.S.C. § 924(c); and (3)
possession of a firearm by a felon, in violation of 18 U.S.C.
§ 922(g)(1). Under the plea agreement, the government
agreed, among other things, to dismiss two additional counts
and to recommend that Chaney receive adjustments to his
sentence for acceptance of responsibility. The plea agreement
also provided that Chaney, "in exchange for the
concessions made by the United States . . . waive[d] the
right to contest either the conviction or the sentence in any
direct appeal or other post-conviction action, including any
proceeding under 28 U.S.C. § 2255." The waiver
excepted claims for ineffective assistance of counsel and
sentencing, the district court imposed an aggregate sentence
of 272 months' imprisonment, consisting of two concurrent
sentences of 180 months on the carjacking count and 188
months on the § 922(g)(1) count and a statutory
mandatory consecutive sentence of 84 months on the §
924(c) count. At the time of his sentencing, Chaney had five
prior North Carolina convictions for breaking and entering,
any one of which was used to support the element of his
§ 922(g)(1) conviction that he be a felon. See
18 U.S.C. § 922(g)(1) (defining a predicate felony
offense as a "crime punishable by imprisonment for a
term exceeding one year"). The prior North Carolina
convictions also enhanced Chaney's sentence on that
conviction, as well as on his carjacking conviction.
2012, following our decision in United States v.
Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), Chaney
filed a motion under 28 U.S.C. § 2255, challenging his
§ 922(g)(1) conviction and sentence, as well as his
carjacking sentence. In Simmons, we held that North
Carolina convictions such as Chaney's are not
"punishable by imprisonment for a term exceeding one
year" and therefore do not qualify as felonies under
federal law. See 649 F.3d at 243-49. Accordingly,
Chaney claimed that none of his prior offenses supported the
element of his § 922(g)(1) conviction that he be a
felon. He also argued that the unlawful § 922(g)(1)
conviction affected his sentencing on the carjacking count
and accordingly requested resentencing.
response, the government agreed that Chaney was
"actually innocent of the § 922(g)(1) conviction
because he was not a felon at the time," and therefore
it stated that, as to that count, it was waiving its defenses
based on the waiver in Chaney's plea agreement and the
statute of limitations under 28 U.S.C. § 2253(f) in
order to allow vacation of Chaney's § 922(g)(1)
conviction and sentence. But the government limited its
waiver to the § 922(g)(1) conviction and continued to