                                     PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                      No. 13-6491


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

DARIUS LATRON CHANEY,

                    Defendant - Appellant.


Appeal 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)


Argued: September 26, 2018                                Decided: December 19, 2018


Before GREGORY, Chief Judge, and NIEMEYER and AGEE, Circuit Judges.


Dismissed by published opinion. Judge Niemeyer wrote the majority opinion, in which
Judge Agee joined. Chief Judge Gregory wrote a separate opinion, concurring in part,
dissenting in part, and concurring in the judgment.


ARGUED: Ann L. 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. ON BRIEF: Ross Hall Richardson, Interim Federal Public Defender,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant. Jill Westmoreland Rose, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
NIEMEYER, Circuit Judge:

      In 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 prosecutorial misconduct.

      At 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.



                                            2
      In 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.

      In 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 assert its defenses against

Chaney’s challenge to his carjacking sentence. It thus opposed Chaney’s request for

resentencing.

      By order dated January 25, 2013, the district court granted Chaney partial relief,

vacating his § 922(g)(1) conviction and sentence but declining to resentence him on the

other two counts. The court entered an amended judgment in Chaney’s criminal case on

January 31, 2013, reimposing the 180-month sentence for Chaney’s carjacking conviction

and a consecutive 84-month sentence for his § 924(c) conviction.

                                            3
       Chaney filed this appeal on March 26, 2013, some 54 days after the court’s

amended judgment was entered.


                                              I

       At the outset, the government asserts that Chaney’s notice of appeal filed 54 days

after the amended judgment was not timely filed, as Federal Rule of Appellate Procedure

4(b) requires that a defendant in a criminal case file his notice of appeal within 14 days of

the judgment. Chaney responds that because a § 2255 proceeding is civil in nature, any

appeal was subject to the 60-day filing period contained in Federal Rule of Appellate

Procedure 4(a). See Browder v. Dir., Dept. of Corr., 434 U.S. 257, 269 (1978) (noting

that “[i]t is well settled that habeas corpus is a civil proceeding”). Thus, if Chaney is

appealing an order in a civil action, his notice of appeal was timely filed — i.e., within 60

days of the order. But if he is appealing a new criminal judgment, his notice of appeal

was not timely filed because it was filed beyond the 14-day appeal period.

       Relying on the analysis in United States v. Hadden, 475 F.3d 652 (4th Cir. 2007),

we conclude that Chaney was indeed appealing a new criminal judgment and therefore

that his appeal was not timely filed and must be dismissed, see United States v. Oliver,

878 F.3d 120, 123 (4th Cir. 2017).

       In Hadden, we considered whether an amended judgment entered following a

§ 2255 order was part of the habeas proceeding or part of the underlying criminal case to

determine whether the prisoner there was required to obtain a certificate of appealability

to appeal. We noted that, in ruling on a § 2255 motion, a district court first determines


                                             4
whether the sentence is unlawful on one of the grounds specified in § 2255. See Hadden,

475 F.3d at 661.     If the sentence is unlawful because of some legal defect in the

conviction, the court must vacate the conviction and sentence. Id. In the second step of

the process, the court must grant the defendant an appropriate remedy, including:

(1) discharging the defendant, (2) granting a new trial, (3) resentencing the defendant, or

(4) correcting the sentence. Id. We thus concluded that when the district court remedies

an unlawful sentence by resentencing the defendant or correcting the sentence, “an order

entering the result of such a resentencing or an order correcting the prisoner’s sentence is

a hybrid order that is both part of the petitioner’s § 2255 proceeding and part of his

criminal case.” Id. at 664. The order is part of the § 2255 proceeding to the extent that it

completes that proceeding, but to the extent that the order enters a new criminal sentence,

it is part of the criminal case. Id. When a prisoner appeals the aspect of the order

entering the new criminal sentence, by, for example, “challenging the relief granted —

i.e., whether the relief was ‘appropriate’ under § 2255, whether the new sentence was in

conformity with the Constitution or sentencing guidelines, etc. — he is appealing a new

criminal sentence.” Id. (emphasis added). As we summarized, “to the extent the order

vacates the original sentence and enters a new criminal sentence . . . the order is part of

the prisoner’s criminal case.” Id.

       Of course, when a prisoner appeals a new criminal sentence entered in his criminal

case, he must comply with the rules applicable to appeals of criminal judgments,

including Federal Rule of Appellate Procedure 4(b).



                                             5
       In this case, it is clear that Chaney is challenging the relief that the district court

granted, arguing that in addition to vacating his § 922(g)(1) conviction and sentence, the

court’s judgment should have ordered resentencing on the carjacking conviction, rather

than reimposing the prior sentences. He is thus challenging the relief granted in the

judgment that the court fashioned. He does not argue that the district court erred in

concluding that his challenge to his carjacking sentence was time-barred or that it was not

cognizable on habeas review; he argues instead that regardless of the success of his

challenge to the carjacking sentence, the court could have resentenced him on the

carjacking count as part of the remedy it granted for his unlawful § 922(g)(1) conviction.

Chaney asserts that “the fact that [he] brought an unsuccessful § 2255 claim directly

challenging the sentence on [the carjacking count] makes no difference in the analysis,”

because the court failed to fashion an appropriate remedy — a “full resentencing” on the

carjacking conviction upon the vacatur of the § 922(g)(1) conviction. It is thus apparent

that Chaney is challenging “matters relating to the propriety of the relief granted” and is

therefore “appealing a new criminal sentence.” Hadden, 475 F.3d at 666 (emphasis in

original).

       Accordingly, we dismiss Chaney’s appeal in this case as untimely under Federal

Rule of Appellate Procedure 4(b).


                                              II

       In addition to Chaney’s failure to appeal timely, we conclude alternatively that the

district court did not abuse its discretion in vacating only Chaney’s conviction and


                                              6
sentence on the § 922(g)(1) count and not ordering a resentencing on Chaney’s

carjacking conviction.

       A district court has broad discretion in crafting relief on a § 2255 claim. Section

2255(b) provides that, after a district court concludes a sentence is unlawful because the

underlying conviction was unlawful, “the court shall vacate and set the judgment aside

and shall discharge the prisoner or resentence him or grant a new trial or correct the

sentence as may appear appropriate.” 28 U.S.C. § 2255(b). As we have observed, this

language “confers a ‘broad and flexible’ power to the district courts ‘to fashion the

appropriate remedy’” for an unlawful conviction. United States v. Hillary, 106 F.3d

1170, 1171 (4th Cir. 1997) (quoting United States v. Garcia, 956 F.2d 41, 45 (4th Cir.

1992)); see also Hadden, 475 F.3d at 669 (“The district court has ‘broad and flexible

power’ under § 2255 to determine the nature and scope of the remedial proceedings in the

first instance” (quoting Hillary, 106 F.3d at 1171)).

       Chaney contends that the most “appropriate” remedy in this case would include a

resentencing on his carjacking conviction — even though he has no cognizable claim that

his carjacking sentence was illegal. The carjacking sentence was legally enhanced based

on his North Carolina convictions, and any relief he could obtain from Simmons was not

then available. Rather, he argues that the sentence for the offense was affected by his

unlawful § 922(g)(1) conviction, which the court vacated. He relies on the “sentence-

package theory,” which, we have recognized, provides that in appropriate circumstances

resentencing on all counts is a proper remedy under § 2255 for a single unlawful

conviction. See United States v. Smith, 115 F.3d 241, 245 (4th Cir. 1997). But we have

                                             7
also recognized that “nothing in the sentence-package theory forbids the district courts

from doing what the text of § 2255 clearly permits: ‘correcting’ a prisoner’s unlawful

sentence without conducting a formal ‘resentencing.’”          Hadden, 475 F.3d at 669

(brackets omitted) (quoting 28 U.S.C. § 2255(g)). And indeed, that is precisely what the

court did in this case. Having concluded that Chaney’s § 922(g)(1) conviction was

unlawful, the court chose to strike that conviction and sentence but to leave the sentences

on the other two counts alone, thereby “indicat[ing] that it was satisfied with the resulting

sentence.” Hadden, 475 F.3d at 669. This choice cannot be said to have been an abuse

of discretion.

       Chaney argues that the district court refused to order a “full resentencing” because

“it failed to recognize its authority” to do so. Specifically, he contends that the district

court viewed the waiver in Chaney’s plea agreement (and the government’s other

defenses) as prohibiting it from resentencing Chaney on his carjacking conviction. But

Chaney does not — and cannot — contend that his plea-agreement waiver was irrelevant

to the district court’s decision on whether to order resentencing. In addition to facing the

limitations bar of 28 U.S.C. § 2255(f), Chaney voluntarily and knowingly agreed to

“waive 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.” That

the government waived its defenses only with respect to Chaney’s § 922(g)(1) conviction

and continued to oppose resentencing on Chaney’s other counts were matters that the

court could legitimately consider in exercising its remedial discretion under § 2255.



                                             8
       While the court, in addressing Chaney’s argument that he was “entitled to be

resentenced” (emphasis added), rejected that argument based on various applicable

provisions of law, such an analysis did not indicate that the court considered itself limited

to granting the relief that it entered.

       In sum, we conclude that the district court did not abuse its discretion in entering

the amended judgment in the form that it did, and we would, alternatively, affirm the

district court’s order and amended judgment.

                                                                               DISMISSED




                                             9
GREGORY, Chief Judge, concurring in part, dissenting in part, and concurring in the

judgment:

       I agree with the majority’s conclusion in Part I that Chaney is appealing a new

criminal judgment under this Court’s decision in United States v. Hadden, 475 F.3d 652

(4th Cir. 2007), and that his notice of appeal was not timely filed because it was filed

after the 14-day appeal period set forth in Federal Rule of Appellate Procedure 4(b). I

respectfully dissent from Part I, however, to the extent that it dismisses Chaney’s appeal

on the basis that it was untimely filed under Rule 4(b).          Because that rule is not

jurisdictional, and given the circumstances presented in this case, I would excuse the

untimeliness of Chaney’s appeal and reach the merits of his challenge. On the merits, I

concur in the majority’s alternative holding in Part II that the district court did not abuse

its discretion in vacating Chaney’s unlawful conviction and sentence on the § 922(g)(1)

count and entering a corrected sentence without conducting a formal resentencing.

       It is well-settled that the non-statutory time limits in Rule 4(b) “do not affect

subject-matter jurisdiction.” United States v. Urutyan, 564 F.3d 679, 685 (4th Cir. 2009);

see also United States v. Oliver, 878 F.3d 120, 123 (4th Cir. 2017). We may therefore

exercise our discretion to hear a criminal appeal not timely filed if we believe the

circumstances justify our doing so. See Bowles v. Russell, 551 U.S. 205, 212 (2007)

(recognizing that “procedural rules adopted by the Court for the orderly transaction of its

business are not jurisdictional and can be relaxed by the Court in the exercise of its

discretion” (quoting Schacht v. United States, 398 U.S. 58, 64 (1970))). In my view, the

circumstances here counsel in favor of addressing the merits of Chaney’s appeal.

                                             10
       As an initial matter, Chaney rightly points out that his notice of appeal was not

“inordinately late.” It was filed 54 days after the district court entered its amended

judgment—40 days after Rule 4(b)’s criminal-appeal period of 14 days, but within Rule

4(a)’s civil-appeal period of 60 days. Cf. Oliver, 878 F.3d at 129 (dismissing an appeal

as untimely filed under Rule 4(b) where the appellant “filed his notice of appeal more

than three years and eight months after the district court entered the underlying

judgment”). The Government does not claim to have been prejudiced by this 40-day

delay. Indeed, the Government elected not to file a motion to dismiss Chaney’s appeal

and suspend briefing under Local Rule 27(f) on the basis that the appeal notice was not

timely filed. See United States v. Hyman, 884 F.3d 496, 498 (4th Cir. 2018) (explaining

that Local Rule 27(f) “allows a party to move to dismiss (1) on procedural grounds, and

(2) at any time”). The Government instead waited until filing its response brief to raise

this issue. Cf. id. at 500 (granting the Government’s motion to dismiss an untimely

criminal appeal where the Government “raised the dismissal argument before filing its

response brief and within that brief”).

       More fundamentally, however, that Chaney’s notice of appeal was timely filed

under Rule 4(a)’s civil-appeal period reflects his reasonable belief that his appeal was an

appeal from “the final order in a proceeding under section 2255.”              28 U.S.C.

§ 2253(c)(1)(B). The majority and the Government cite no case, nor am I aware of any,

in which a court has held that Rule 4(b) governs an appeal of an amended judgment

correcting a prisoner’s sentence after a successful § 2255 challenge.        Although we

conclude today that this result follows from Hadden, our decision in Hadden held only

                                            11
that an appeal of an amended judgment correcting a prisoner’s sentence was part of the

prisoner’s criminal case—at least to the extent that it challenged “the propriety of the

relief granted”—such that he need not obtain a certificate of appealability under § 2253 to

pursue the appeal. See Hadden, 475 F.3d at 664–66. This Court in Hadden had no

occasion to address the separate question—at issue here—whether the 14-day appeal

period in Rule 4(b) governs the appeal of any such amended judgment. Chaney’s late-

filed appeal thus reflects a reasonable misunderstanding of the law stemming from the

lack of precedent on this question at the time the appeal was taken.

       Chaney’s mistake about the applicable appeal deadline is even more

understandable given the complex relationship between the civil and criminal aspects of

habeas proceedings. See United States v. Jones, 215 F.3d 467, 469 (4th Cir. 2000)

(stating that “habeas actions are a unique hybrid of civil and criminal”). As the Hadden

Court itself recognized, determining whether an amended judgment was part of a

prisoner’s criminal case or his § 2255 proceeding was not an easy or clear-cut task. See

Hadden, 475 F.3d at 660 (“Our extensive research has discovered no cases directly

addressing this issue.”); id. at 663 (“When . . . the district court remedies a § 2255

petitioner’s unlawful sentence by resentencing him or correcting his sentence, it is less

clear whether the resentencing or correction itself is part of the prisoner’s § 2255

proceeding or part of his criminal case.”). After parsing the language of § 2255 and

reviewing extensively the Supreme Court’s decision in Andrews v. United States, 373

U.S. 334 (1963), this Court ultimately settled on an approach that split the difference.

We held that “[b]ecause a § 2255 resentencing or correction of the prisoner’s sentence []

                                            12
bears traits of both a § 2255 proceeding and a criminal action, . . . an order entering the

result of such a resentencing or an order correcting the prisoner’s sentence is a hybrid

order that is both part of the petitioner’s § 2255 proceeding and part of his criminal case.”

Hadden, 475 F.3d at 664. “This interpretation,” we acknowledged, was “somewhat

novel,” although it was consistent with the “hybrid” nature of habeas actions and faithful

to the policies behind §§ 2253 and 2255. Id. at 664–65; see also Jones, 215 F.3d at 469.

       Under these circumstances, where it remained unclear at the time of Chaney’s

appeal whether Rule 4(a) or Rule 4(b) applied to his challenge, and where this inquiry

ultimately turns on the complex relationship between the civil and criminal aspects of

habeas actions as recognized in Hadden, I would decline to dismiss this case on the basis

that Chaney’s appeal was not timely filed and would instead proceed to the merits.

       Turning to the merits, I agree with the majority’s alternative holding in Part II that

the district court did not abuse its discretion in vacating Chaney’s unlawful conviction

and sentence on the § 922(g)(1) count and entering a corrected sentence rather than

resentencing him. See Hadden, 475 F.3d at 669 (explaining that “[t]he district court has

‘broad and flexible power’ under § 2255 to determine the nature and scope of the

remedial proceedings in the first instance” (quoting United States v. Hillary, 106 F.3d

1170, 1171 (4th Cir. 1997))). Although Chaney contends that the district court failed to

recognize that it had the authority to resentence him, the record shows that the court

understood and addressed the parties’ main arguments—including Chaney’s argument

that he was entitled to be resentenced—before exercising its discretion to correct the

sentence rather than conduct a resentencing. Cf. Ajan v. United States, 731 F.3d 629, 633

                                             13
(6th Cir. 2013) (vacating and remanding the district court’s amended judgment because

the record left unclear “whether the district court erroneously believed it had to correct

[the] sentence in lieu of a resentencing”). For this reason, I discern no abuse of discretion

and therefore join Part II of the majority opinion.




                                             14
