                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-6254


GORDON LEE MILLER,

                Petitioner - Appellant,

           v.

UNITED STATES OF AMERICA,

                Respondent – Appellee.

-------------------------

RICHARD DONALD DIETZ,

                Court-Assigned Amicus Counsel.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Robert J. Conrad,
Jr., Chief District Judge.  (3:12-cv-00701-RJC; 3:07-cr-00059-
RJC-1)


Argued:   June 25, 2013                   Decided:   August 21, 2013


Before KING, DIAZ, and FLOYD, Circuit Judges.


Vacated and remanded by published opinion.   Judge Floyd wrote
the opinion, in which Judge King and Judge Diaz joined.  Judge
King wrote a separate concurring opinion.


ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant.   Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.   Richard Donald Dietz, KILPATRICK
TOWNSEND & STOCKTON, LLP, Winston-Salem, North Carolina, for
Court-Assigned Amicus Counsel.      ON BRIEF: Henderson Hill,
Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant.         Anne M.
Tompkins, United States Attorney, Charlotte, North Carolina, for
Appellee.




                               2
FLOYD, Circuit Judge:

     Petitioner Gordon Lee Miller appeals the dismissal of his

28 U.S.C. § 2255 motion to vacate his conviction for violating

18 U.S.C. § 922(g)(1)—possession of a firearm by a convicted

felon.   Miller was convicted for a single count of possession of

a firearm by a convicted felon.            Four years later, Miller filed

a motion to vacate his conviction pursuant to 28 U.S.C. § 2255,

arguing that under this Court’s decision in United States v.

Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), he was innocent

of the firearm offense.           We agree and for the reasons that

follow vacate his conviction and remand with instructions to

grant Miller’s § 2255 petition.



                                      I.

     This    appeal   arises   from    Miller’s    2008   conviction   for   a

single count of possession of a firearm by a convicted felon,

violating 18 U.S.C. § 922(g)(1).            On March 27, 2007, the Grand

Jury for the Western District of North Carolina charged Miller

with possessing a firearm after having been previously convicted

of one or more crimes punishable by imprisonment for a term

exceeding one year.        At the time of Miller’s trial, he had

previously    been    convicted       in   North    Carolina   for     felony

possession of cocaine, for which he was sentenced to six to

eight months in prison.        He was then convicted in North Carolina

                                       3
for threatening a court officer, for which he was also sentenced

to six to eight months in prison.                   Pursuant to North Carolina’s

Structured      Sentencing       Act,    the      maximum     sentence    that    Miller

could have received for either offense—based on his prior record

level—was eight months.               N.C. Gen. Stat § 15A-1340.17(c), (d).

At   the     time     of   trial,     under    then    valid    precedent,   Miller’s

convictions were considered to be “punishable by imprisonment

for a term exceeding one year.”                   18 U.S.C. § 922(g)(1).           After

the jury found Miller guilty, the district court sentenced him

to seventy-two months’ imprisonment followed by three years of

supervised release.           Miller chose not to appeal this ruling.

       However,       four    years    later,     in   2012,    Miller    filed    a   28

U.S.C. § 2255 motion to vacate his conviction.                      Miller contends

that in light of this Court’s decision in Simmons he is innocent

of the § 922(g)(1) firearm offense because he did not have any

qualifying predicate convictions.                  Alternatively, Miller sought

relief under 28 U.S.C. § 2241 by way of a writ of error coram

nobis or by a writ of audita querela.                         The government agreed

with       Miller’s    position       and,    after     waiving    the    statute      of

limitations, 1        which    would     normally       bar    Miller’s    motion      as


       1
        28 U.S.C. § 2255 includes a one-year statute of
limitations for filing a motion to vacate. This period runs
from the latest of:

(1) the date on which the judgment of conviction becomes
     final;
                                              4
untimely,     asked   the   district   court     to   vacate   Miller’s

conviction.

      To understand Miller’s claim that he is actually innocent

of the firearms offense, we begin by explaining the line of

precedent on which he relies.     First, in 2010, the Supreme Court

decided Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010),

which held that whether a conviction is, for purposes of the

Immigration and Nationality Act, an “aggravated felony” must be

determined by looking at the defendant’s actual conviction and

not the offense for which he could have possibly been convicted

based on his conduct.       To qualify as an aggravated felony the

crime must be one for which “the ‘maximum term of imprisonment

authorized’ is ‘more than one year.’”          Id. at 2581 (quoting 18

U.S.C. § 3559(a)).



(2) the date on which the impediment to making a motion
     created by governmental action in violation of the
     Constitution or laws of the United States is removed,
     if the movant was prevented from making a motion by
     such governmental action;

(3)   the date on which the right asserted was initially
      recognized by the Supreme Court, if that right has
      been newly recognized by the Supreme Court and made
      retroactively  applicable to  cases  on   collateral
      review; or

(4) the date on which the facts supporting the claim or
     claims presented could have been discovered through
    the exercise of due diligence.

28 U.S.C. § 2255(f)(1)-(4).

                                  5
       After Carachuri, the Supreme Court asked us to reconsider

our initial panel decision in Simmons, in which we held that

Simmons’s        prior         state     conviction           for       which     he       faced    no

possibility          of    imprisonment           was        an    offense        punishable        by

imprisonment         for       more    than   one     year        that    allowed      a    sentence

enhancement.             649 F.3d at 240-41.                 Previously, “‘to determine

whether a conviction is for a crime punishable by a prison term

exceeding one year’ under North Carolina law, ‘we consider[ed]

the maximum aggravated sentence that could be imposed for that

crime     upon       a     defendant       with       the         worst    possible         criminal

history.’”        Id. at 241 (quoting United States v. Harp, 406 F.3d

242, 246 (4th Cir. 2005)).                       Upon rehearing the case en banc,

this Court changed course, overruling long-standing precedent,

and vacated Simmons’s sentence in light of Carachuri.                                      The Court

held    that     a       prior    conviction          under        North    Carolina         law    is

punishable by more than one year of imprisonment only if the

defendant’s          conviction,          based         on        his     individual         offense

characteristics            and        criminal      history,            allowed    for       such    a

sentence.        Id. at 244.             Therefore, we no longer look “to the

maximum sentence that North Carolina courts could have imposed

for a hypothetical defendant who was guilty of an aggravated

offense    or     had      a    prior    criminal        record.”           United     States       v.

Powell, 691 F.3d 554, 556 (2012).



                                                  6
      After Simmons, this Court then decided Powell.                     In Powell,

the   defendant   brought     a   28     U.S.C.    §    2255   motion    seeking     to

vacate his conviction in light of the Supreme Court’s decision

in Carachuri.        691 F.3d at 555.             Powell urged this Court to

apply Carachuri in the same way that we had previously applied

it in Simmons to vacate his sentence under North Carolina law.

Id. at 556-57.        This Court declined to do so and found that

Carachuri announced a procedural rule that was not retroactive

on collateral review.         Id. at 560-61.           This Court reasoned that

Carachuri was a procedural rule because it “at most altered the

procedural    requirements        that    must     be    followed       in   applying

recidivist enhancements and did not alter the range of conduct

or the class of persons subject to criminal punishment.”                       Id. at

559-60.

      On February 15, 2013, the district court denied Miller’s

motion to vacate.       It acknowledged the government’s waiver of

its statute-of-limitations defense but held that Miller’s claim

failed    because,    under    Powell,         Simmons    is   not   retroactively

applicable on collateral review.                Thus, Miller was not entitled

to relief.    The district court also denied Miller’s alternative

claims for relief.      The district court granted a certificate of

appealability (COA), and Miller then timely appealed to this

Court.     Because    Miller      and    the    government     contend       that   the

district court’s ruling was erroneous and his conviction should

                                          7
be vacated, we appointed Amicus Curiae to defend the reasoning

of the district court.            We have jurisdiction pursuant to 28

U.S.C. § 2253(c)(1). 2



                                        II.

     Miller argues that pursuant to our decision in Simmons his

conviction under 18 U.S.C. § 922(g)(1) must be vacated.                        Under

§ 922(g)(1), it is unlawful for a person to possess a firearm if

he “has been convicted in any court of[] a crime punishable by

imprisonment for a term exceeding one year.”                     “What constitutes

a conviction [of a crime punishable by imprisonment for a term

exceeding one year] shall be determined in accordance with the

law of the jurisdiction in which the proceedings were held.”                       18

U.S.C.   §    921(a)(20).        In    Simmons,      this   Court    held   that    a

defendant’s     prior      conviction       for    which    he   could   not   have

received     more   than    a   year   in       prison   under   North   Carolina’s


     2
       Amicus argues that this Court does not have jurisdiction
because the district court improperly issued the COA pursuant to
28 U.S.C. § 2253(c). We disagree. “[A] conviction for engaging
in conduct that the law does not make criminal is a denial of
due process” for which a COA is appropriate.     Buggs v. United
States, 153 F.3d 439, 444 (7th Cir. 1998).    This is consistent
with our grants of COAs in cases similar to this.     See, e.g.,
United States v. Thomas, 627 F.3d 534, 535 (4th Cir. 2010)
(noting that we “granted a certificate of appealability to
consider the issue of whether Watson [holding that a person does
not use a firearm under 18 U.S.C. § 924(c)(1)(A) when he
receives it in trade for drugs] announced a new rule of law that
applies retroactively to cases on collateral review”). Thus, we
decline to review the COA and proceed on the merits.
                                            8
mandatory      Structured       Sentencing          Act,    N.C.     Gen.       Stat.    §    15A-

1340.17, was not “punishable” by more than one year in prison

and is not a felony offense for purposes of federal law.                                       649

F.3d    at    243.     Prior     to    Simmons,        the    individual          defendant’s

actual criminal record at the time he was convicted for a prior

North     Carolina     offense        did       not   matter;        if     a    hypothetical

defendant charged with the same crime could have received more

than one year in prison under North Carolina law, the crime was

a felony in federal court.               See United States v. Harp, 406 F.3d

242    (4th    Cir.    2005).         After      Simmons,      an    individual          is    not

prohibited      from    possessing          a    firearm      unless        he    could       have

received a sentence of more than one year for at least one of

his    prior    convictions.           The       parties     and     Amicus        agree      that

Simmons announced a new rule affecting § 922(g)(1).                                     However,

Amicus argues that the rule is not retroactively applicable.

       A petitioner who collaterally attacks his conviction must

establish that the change applies retroactively.                                   Bousley v.

United States, 523 U.S. 614, 620 (1998).                             Miller argues that

Simmons       should    be    applied           retroactively        because        the       rule

limiting retroactivity announced in Teague v. Lane, 489 U.S. 288

(1989), does not apply here.                    Under Teague, “[u]nless they fall

within    an    exception      to     the    general        rule,    new        constitutional

rules    of    criminal      procedure       will     not    be     applicable       to      those



                                                9
cases     which    have     become       final      before       the       new      rules         are

announced.”       Id. at 310.

     Miller makes two arguments as to why Teague does not apply.

First,     he     contends        that       Teague       applies           only         to       new

constitutional         rules           and      Simmons          involved               statutory

interpretation.         We have already rejected this argument.                                     In

United States v. Martinez, 139 F.3d 412, 417 (4th Cir. 1998), we

squarely held that Teague is applicable to cases of statutory

interpretation.           This    holding       has     not    been       placed        in    doubt

because     the    Supreme        Court      has       reaffirmed         in       Schriro         v.

Summerlin,      542    U.S.      at    348     (2004),        that    the      retroactivity

analysis     applies      to     “[n]ew      substantive        rules.         .    .    .        This

includes decisions that narrow the scope of a criminal statute

by   interpreting          its        terms,      as     well        as     constitutional

determinations that place particular conduct or persons covered

by the statute beyond the State’s power to punish.”                                Id. at 351-

52 (citation omitted).

     Next, Miller argues that a Teague exception applies because

Simmons announced a new substantive rather than procedural rule.

Substantive       rules    apply       retroactively           because         there         is     “a

significant risk that a defendant stands convicted of ‘an act

that the law does not make criminal’ or faces a punishment that

the law cannot impose upon him.”                   Schriro, 542 U.S. 352 (quoting

Bousley, 523 U.S. at 620).                   A new rule is substantive “if it

                                             10
alters the range of conduct or the class of persons that the law

punishes.”          Id.   at    353.          By    contrast,         new    procedural       rules

generally do not apply retroactively, because “[t]hey do not

produce a class of persons convicted of conduct the law does not

make criminal, but merely raise the possibility that someone

convicted with use of the invalidated procedure might have been

acquitted otherwise.”               Id. at 352.

       The Simmons decision changed the way this Court determines

whether prior convictions for certain lower-level North Carolina

felonies are punishable by more than one year in prison.                                      This

Court    applied      Carachuri          to    create          a    new     substantive       rule.

Simmons requires the court to look at how much prison time the

defendant was exposed to given his own criminal history at the

time    he   was    sentenced        and      any       aggravating         factors    that   were

actually     alleged        against      him.            For       defendants       convicted    of

possessing      a    firearm        by   a     convicted            felon    under     18   U.S.C.

§ 922(g)(1), where the predicate conviction(s) supporting their

§ 922(g)(1) convictions were North Carolina felony offenses for

which they could not have received sentences of more than one

year    in   prison,      Simmons        also       makes      clear        that    those   felony

convictions do not qualify as predicate felonies for purposes of

federal law, and those defendants are actually innocent of the

§ 922(g)(1) offense of which they were convicted.                                   The fact that

this    Court      relied      on    Carachuri          in     reaching       its    decision   in

                                                   11
Simmons does not mean that Carachuri itself announced a new rule

of    substantive       criminal          law,      only       that   this      Court       applied

Carachuri       in    such    a     way      as    to     announce      such        a   rule.         We

implicitly          recognized         that        some     extension          of       logic     was

necessary,       stating      that     Carachuri          “directly       undermine[d]”            the

Court’s        rationale       in      Harp,        rather       than     recognizing             that

Carachuri directly overruled Harp.                          Simmons, 649 F.3d at 246.

Simmons, then, narrowed the scope of § 922(g)(1) by establishing

that it does not reach defendants whose prior convictions could

not have resulted in a sentence of more than one year in prison.

Thus,    Simmons        altered        “the       class     of    persons       that       the    law

punishes,” Schriro, 542 U.S. at 353, and announced a substantive

rule that is retroactively applicable.

      Comparing the Simmons decision to other decisions that have

announced a substantive rule makes clear that Simmons functioned

as an announcement of a new substantive rule.                                       In Bailey v.

United States, 516 U.S. 137 (1995), for example, the Supreme

Court    rejected       the       previous         construction          of    the       use     of    a

firearm,       as    defined      in    18    U.S.C.       §     924(c)(1)—that           had     been

applied in many circuit courts of appeals, including this Court—

and     held     that    “using”          a       firearm       within        the       meaning       of

§ 924(c)(1) required the “active employment of a firearm,” not

its mere possession.              Simmons, 649 F.3d at 143-44.                          Because the

decision narrowed the scope of “use” to mean “active employment”

                                                  12
and    not   “mere   possession,”         the    Supreme   Court    recognized      in

Bousley that Bailey announced a new substantive rule that was

retroactively        applicable      to     cases     on    collateral         review.

Bousley,     523   U.S.    at   620-21.         Further,   in   Watson    v.    United

States, 552 U.S. 74, 83 (2007), the Court narrowed the scope of

18 U.S.C. § 924(c)(1), holding that a person does not “use” a

firearm in violation of that statute when he receives it in

trade for drugs.           In each of these cases, then, the Supreme

Court considered the substantive scope of a criminal statute and

announced a new rule that, in some way, narrowed the scope of

that statute as it had previously been construed.

       Contrary to Amicus’s assertion, our decision in Powell does

not control the outcome here.              In Powell, this Court determined

that    Carachuri        announced   a     procedural      rule    that    was     not

retroactively applicable on collateral review.                    691 F.3d at 559-

60.    Powell filed a motion under 28 U.S.C. § 2255 seeking to

vacate his sentence in light of Carachuri.                      Id. at 555.         To

determine whether the Court had the power to hear the merits of

Powell’s claim it first had to determine whether Powell could

get    around      the     statute-of-limitations          problem.            Section

2255(f)(3) provides for a one-year limitation that “shall run

from the latest of . . . the date on which the right asserted

was initially recognized by the Supreme Court, if that right has

been . . . made retroactively applicable to cases on collateral

                                           13
review.”       Simply       put,     the      Court   had    to    determine            whether

Carachuri    was     retroactive         to    decide   if   the     motion      filed       by

Powell was timely.            In doing so, the Court went on to reason

that Carachuri did not alter the “range of conduct” nor the

“class of persons” that could be punished.                         Instead, Carachuri

simply     recognized       that        the    recidivist     nature       of       a    prior

conviction had to be apparent on the face of the record in order

to   trigger    enhanced       punishment.            Id.    at     559.        Therefore,

Carachuri,     in    this   context,          looks   only   at    whether      a       certain

procedure was followed in obtaining a prior conviction; it does

not narrow the scope of a criminal statute such that it places a

class of persons beyond the State’s power to punish or exposes a

defendant to punishment that the law cannot impose upon him.

However, Powell does not necessarily mean that Simmons did not

announce a substantive rule.                   Although the Court took note of

the Simmons case, the Court did not consider—and was not asked

to consider—whether Simmons announced a new substantive rule.

Id. at 557.          The retroactivity of Simmons was irrelevant to

Powell because Powell’s § 2255 petition could be sustained only

by a retroactive Supreme Court decision.

     In fact, Simmons did announce a substantive rule when it

applied Carachuri’s principles and then narrowed the class of

offenders      and    range        of    conduct      that    can     be    subject          to

punishment.           This      additional            application      and          analysis

                                              14
distinguishes       Simmons   from   Carachuri.         In    sum,     even   though

Powell determined that Carachuri is a procedural rule that is

not retroactive, this does not mean that Simmons, in applying

Carachuri,     did    not     announce     a      substantive    rule     that   is

retroactive.



                                      III.

       In conclusion, because Simmons announced a new substantive

rule    that   is    retroactive     on        collateral    review,    we    vacate

Miller’s conviction and remand with instructions to the district

court to grant his petition.

                                                            VACATED AND REMANDED




                                          15
KING, Circuit Judge, concurring:

      I write separately to reiterate my view that the Supreme

Court’s decision in Carachuri-Rosendo v. Holder, 130 S. Ct. 2577

(2010),    is    retroactively       applicable    to   cases   on   collateral

review.      See United States v. Powell, 691 F.3d 554, 560-66 (4th

Cir. 2012) (King, J., dissenting in part and concurring in the

judgment in part).           I also acknowledge and appreciate that the

panel majority’s contrary ruling in Powell is the law of this

Circuit.      Nevertheless, as Judge Floyd so ably explains today,

Powell did not answer the distinct question now before us, that

is, whether this Court’s decision in United States v. Simmons,

649   F.3d      237   (4th    Cir.   2011)   (en   banc),   has      retroactive

applicability.        I unequivocally agree with my fine colleagues

that it does.




                                        16
