                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-7107


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

RICHARD LEE ADAMS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.     James C. Dever III,
Chief District Judge. (5:08-cr-00004-D-1; 5:12-cv-00577-D)


Argued:   December 9, 2015                Decided:   February 19, 2016


Before MOTZ and FLOYD, Circuit Judges, and John A. GIBNEY, Jr.,
United States District Judge for the Eastern District of
Virginia, sitting by designation.


Vacated by published opinion. Judge Floyd wrote the opinion, in
which Judge Motz and Judge Gibney joined.


ARGUED:   Marianna   F.  Jackson,  COVINGTON  &   BURLING,  LLP,
Washington, D.C., for Appellant.   Christopher Michael Anderson,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.    ON BRIEF: Robert A. Long, COVINGTON & BURLING,
LLP, Washington, D.C., for Appellant. Thomas G. Walker, United
States Attorney, Jennifer P. May-Parker, Seth M. Wood, Assistant
United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.
FLOYD, Circuit Judge:

        Appellant         Richard       Lee     Adams        (Adams)        challenges             his

conviction      for     being       a   felon    in    possession         of      a    firearm      in

violation      of    18    U.S.C.       §   922(g).         Adams     argues          that    he    is

actually innocent of the § 922(g) offense because he was not, at

the   time     of   the     offense,        a   convicted          felon.         We    agree      and

accordingly vacate his conviction and direct entry of judgment

in his favor.



                                                I.

      On January 2, 2008, a grand jury returned an eight count

indictment against Adams alleging that he committed a series of

armed    robberies        of    convenience          stores.         In     May       2009,   Adams

pleaded guilty pursuant to a written plea agreement to three of

the eight counts: (1) robbery in violation of 18 U.S.C. § 1951

(Count 2); (2) using and carrying a firearm during a crime of

violence in violation of 18 U.S.C. § 924(c) (Count 3); and (3)

being a felon in possession of a firearm in violation of 18

U.S.C.    §    922(g)      (Count       8).     The     plea       agreement          contained      a

provision      in    which      Adams       waived    his    right        to   challenge           his

conviction or sentence in a motion pursuant to 28 U.S.C. § 2255

unless    he   did    so       on   the     basis     of   ineffective         assistance           of

counsel or prosecutorial misconduct.                         Before accepting Adams’s

guilty    plea,     the     district        court     held     a    colloquy          pursuant      to

                                                2
Federal    Rule    of       Criminal       Procedure         11.         The   district         court

singled out the waiver provision “in particular” and read it to

Adams.      J.A.       50.         Adams      indicated       that       he    understood         the

appellate and collateral attack rights he was giving up as part

of his plea agreement.                In exchange for the concessions made by

Adams in the plea agreement, the government agreed to dismiss

the remaining five counts of the indictment relating to other

armed robberies.

     The district court held a sentencing hearing on October 23,

2009.    Based    on    a     total      offense      level        of    23    and   a     criminal

history     category         of    IV,     the    district         court       determined         the

Sentencing Guidelines range as to Counts 2 and 8 to be 70 to 87

months    imprisonment             and   as      to   Count        3     to    be    120    months

imprisonment to run consecutively with any term of imprisonment

imposed with regard to Counts 2 and 8.

     After a motion by the government, the court departed upward

at sentencing.          The district court sentenced Adams to a term of

imprisonment       of    120       months        as   to     Counts       2    and    8    to     run

concurrently and a sentence of 120 months as to Count 3 to run

consecutively      to        the    sentences         imposed       in    Counts      2     and    8.

Adams’s total sentence was, therefore, 240 months imprisonment.

The court detailed its rationale for the upward departure in a

written order issued on October 30, 2009.                                Adams appealed his

sentence.        This       Court     affirmed        both    his       conviction         and    his

                                                  3
sentence on January 3, 2011.                       United States v. Adams, 416 F.

App’x 233 (4th Cir. 2011).

     On August 28, 2012, Adams filed a motion pursuant to 28

U.S.C. § 2255 to vacate his § 922(g) conviction as a felon in

possession of a firearm.                  Adams argued that none of his prior

convictions—all         of    which       were         under    North       Carolina       law—were

felonies after our decision in United States v. Simmons, 649

F.3d 237 (4th Cir. 2011) (overruling United States v. Harp, 406

F.3d 242 (4th Cir. 2005)), and that he was, therefore, actually

innocent    of    being      a     felon      in       possession      of     a    firearm.      In

Simmons, we held that for an offense to be a prior felony under

North Carolina’s Structured Sentencing Act as then written, a

defendant must have actually faced the possibility of more than

a year in prison.                649 F.3d at 244-45. In other words, the

government       could       not       rely   on        hypothetical          enhancements       to

determine    the    maximum            term   of       imprisonment.          Id.     at    248-49.

Adams further alleged that his attorneys were ineffective for

failing to anticipate our ruling in Simmons.

     The    district         court        issued        an     order    dismissing         Adams’s

§ 2255 motion on July 1, 2013.                          The court determined that the

substantive Simmons-related claims Adams presented were barred

by the waiver in his plea agreement.                           The court also determined

that Adams suffered no prejudice from any Simmons-related error

because    even    if    his       §    922(g)     conviction          were       vacated,    Adams

                                                   4
would still be required to serve a sentence of 240 months in

prison. 1     With    respect   to   Adams’s       ineffective     assistance     of

counsel     claims,    the    district       court    determined     that      Adam’s

attorneys    were     not   ineffective      for     counselling    him   in   then-

applicable law.        Further, the court again noted that it would

have issued the same sentence even had Simmons applied, so Adams

could not make the requisite showing of prejudice.                   The district

court denied a certificate of appealability.                       Adams appealed

nonetheless.

     This Court granted Adams a certificate of appealability on

the issue of whether Adams’s waiver in his plea agreement barred

consideration of his claim that Simmons rendered him actually

innocent of the § 922(g) conviction.                  We conclude that Adams’s

claim of actual innocence is outside the scope of the appellate

     1  The government wisely does not press this argument on
appeal.   Appellee’s Br. 26.   Felony convictions carry a myriad
of collateral consequences above and beyond time in prison,
including the possibility that a future sentence will be
enhanced based on the challenged conviction, the possibility of
using the conviction for future impeachment, and societal
stigma.    Rutledge v. United States, 517 U.S. 292, 302 (1996).
Adams’s § 922(g) conviction also carried with it a mandatory
special assessment which constituted additional punishment that
would not have been imposed absent a conviction.      See id. at
301-03.      Because an erroneous conviction and accompanying
sentence, even a concurrent sentence, can have significant
collateral consequences, the fact that Adams’s sentence would
not change does not bar his claim. See Guam v. Torre, 68 F.3d
1177, 1180 (9th Cir. 1995) (“The law is plain that multiple
convictions, apart from concurrent sentences, carry adverse
collateral consequences that may not be ignored.” (internal
quotations and citation omitted)).


                                         5
waiver, and, for the reasons explained below, we also conclude

that Adams is indeed actually innocent.



                                           II.

                                           A.

      We first examine whether Adams entered a valid waiver.                             The

validity of a waiver of appeal and collateral attack rights is

reviewed de novo, and we will enforce the waiver if it is valid

and   the    issue      appealed    is   within     the       scope   of   the    waiver.

United States v. Copeland, 707 F.3d 522, 529 (4th Cir. 2013).                              A

waiver      must   be    knowing     and    voluntary.            United     States       v.

Lemaster, 403 F.3d 216, 220 (4th Cir. 2005).                      In the absence of

extraordinary        circumstances,        a     properly       conducted        Rule     11

colloquy establishes the validity of the waiver.                           Id. at 221.

Here, neither party argues that Adams’s waiver was invalid, and

there is no evidence in the record to support such a conclusion.

Rather,     the    issue   is    whether       Adams’s       Simmons-based       claim    is

within the scope of the valid waiver in his plea agreement.

      We have previously held that a Simmons-based challenge to a

sentence     falls      within     the   scope    of     a    valid   appeal      waiver.

Copeland, 707 F.3d at 529-30.                   A waiver remains valid even “in

light of a subsequent change in the law.”                        Id. at 529 (citing

United States v. Blick, 408 F.3d 162 (4th Cir. 2005)).



                                            6
       Copeland,       however,       does       not    render            all     collateral

challenges      automatically        within      the   scope         of   a     valid    waiver

merely because such a challenge invokes Simmons.                              We will refuse

to enforce an otherwise valid waiver if to do so would result in

a miscarriage of justice.              United States v. Johnson, 410 F.3d

137,    151     (4th   Cir.    2005).         “A    proper       showing         of     ‘actual

innocence’ is sufficient to satisfy the ‘miscarriage of justice’

requirement.”          Wolfe v. Johnson, 565 F.3d 140, 160 (4th Cir.

2009) (explaining the meaning of “miscarriage of justice” in the

context    of    procedural       default).        Such     a    showing         renders    the

claim outside the scope of the waiver.                      Thus, if we determine

that   Adams     has   made   a    cognizable       claim       of    actual      innocence,

Adams’s    § 2255 motion falls outside the scope of his waiver.

       Miller v. United States, 735 F.3d 141 (4th Cir. 2013)—a

case cited by neither party—settles the key issue in this case:

whether Adams properly alleges that he is actually innocent of

the § 922(g) conviction.             In Miller, a defendant filed a § 2255

petition        claiming      that    his    §     922(g)       conviction        should    be

vacated    because,      after     Simmons,      his   predicate           North      Carolina

convictions were no longer felonies.                   We agreed and ordered the

district court to grant Miller’s § 2255 motion, holding that

Simmons announced a substantive rule retroactively applicable.

Miller, 735 F.3d at 145-46.            We concluded:



                                             7
             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.

Id. at 146 (emphasis added).         Adams makes exactly the same claim

as Miller; like Miller, Adams makes a valid claim of actual

innocence.      Therefore,    in   keeping    with    our   precedent      and   to

prevent a miscarriage of justice, we conclude Adams’s claim is

outside the scope of his appeal waiver.                   The district court

erred   in   dismissing    Adams’s    claim    as    barred     by   the   waiver

provision in the plea agreement.



                                     B.

      Having determined that Adams’s actual innocence claim is

outside the scope of his appeal waiver, we reach the merits of

his § 2255 motion.        The government makes two arguments against

Adams’s claim of actual innocence, both of which rely on the

Supreme Court’s decision in Bousley v. United States, 523 U.S.

612 (1998).     First, the government contends that although Adams

may   have   shown   “legal   innocence”      he    has   not   shown   “factual

innocence.”     Second, the government contends that Adams had not

                                      8
shown that he is also actually innocent of the conduct alleged

in the five dismissed counts of the indictment.

       In Bousley the Supreme Court observed that actual innocence

“means factual innocence, not mere legal insufficiency.”                       Id. at

623.    The government contends that although Adams may no longer

be legally convicted of a violation of § 922(g) after Simmons,

he remains, nonetheless, somehow still factually guilty.

       We find this argument to be without merit.                          “To show a

§ 922(g)(1) violation, the government must prove three elements:

(i) that the defendant was a convicted felon at the time of the

offense; (ii) that he voluntarily and intentionally possessed a

firearm;     and   (iii)   that   the    firearm      traveled        in    interstate

commerce at some point.”          United States v. Gallimore, 247 F.3d

134, 136 (4th Cir. 2001) (quotation marks and citation omitted).

The    government      recognizes    that         Adams       lacks   the    required

predicate     felony   for   conviction       under       §   922(g)(1)     following

Simmons.      Appellee’s Br. 10.             Under our holding in Simmons,

Adams was not a convicted felon at the time of the offense, and

it was therefore not a violation of § 922(g)(1) for Adams to be

in possession of a firearm.         We conclude that Adams has, indeed,

shown “factual innocence” as contemplated by Bousley because he

has shown that it is impossible for the government to prove one

of    the   required   elements     of   a    §    922(g)(1)      charge—that     the



                                         9
defendant was a convicted felon at the time of the offense.

This is so because Adams was “in fact” not a felon.

      In addition to requiring a showing of factual innocence,

the Supreme Court in Bousley set out an additional requirement:

“[i]n   cases     where     the   Government          has    forgone      more    serious

charges in the course of plea bargaining, petitioner’s showing

of actual innocence must also extend to those charges.”                                 523

U.S. at 624.        The government argues that a showing of factual

innocence as to the § 922(g) charge is insufficient to support

vacating Adams’s conviction.               Instead, the government urges us

to read the above-quoted language from Bousley to require that

Adams show that he is also factually innocent of the charges

contained in the five dismissed counts of the indictment.

      The   facts    of     Bousley   are       instructive        here    and    counsel

against adoption of the government’s reading of the case.                               In

Bousley, Kenneth Bousley pleaded guilty to “using” a firearm in

violation of 18 U.S.C. § 924(c)(1).                   Bousley, 523 U.S. at 616.

After   Bousley     pleaded       guilty,       the    Supreme       Court       construed

§   924(c)(1)’s     “use”    prong    to   require          the   government      to   show

“active employment of the firearm.”                    Bailey v. United States,

516 U.S. 137, 144 (1995).            Bousley challenged his conviction via

a motion pursuant to § 2255 and alleged that he was actually

innocent of “using” a firearm as the Supreme Court had defined

“use” in Bailey.          Bousley, 523 U.S. at 623.                    The government

                                           10
argued before the Supreme Court that Bousley had to show that he

was   actually   innocent   of   both    “using”   and   of   “carrying”    a

firearm, both violations of § 924(c)(1), in order to show that

he was actually innocent of his conviction under that provision.

Id. at 624.      Because the indictment charged Bousley only with

“using” a firearm and there was no record evidence that the

government “elected not to charge” Bousley with “carrying” a

firearm in exchange for his plea of guilty, the Supreme Court

concluded Bousley needed to “demonstrate no more than that he

did not ‘use’ a firearm. . .” as charged in the indictment.           Id.

      The Supreme Court concerned itself with whether Bousley’s

conduct    violated   §   924(c),   a    statute   criminalizing    using,

carrying, or possessing a firearm in relation to any crime of

violence or drug trafficking crime.         All of the Supreme Court’s

analysis related to what Bousley had to show to prove actual

innocence of his § 924(c) crime of conviction.            In other words,

the Court focused on one instance of criminal conduct: whether

Bousley violated § 924(c) by using, carrying, or possessing a

firearm.

        Our decision in Lyons v. Lee, 316 F.3d 528 (4th Cir.

2003), employs a similar conduct-based approach.              In Lyons we

noted that to show actual innocence a defendant convicted of

common law robbery after a guilty plea must also show factual

innocence of the more serious, original charge of armed robbery.

                                    11
Id. at 533 n.5.               Thus, the actual innocence inquiry in Lyons

focused on the underlying criminal conduct of robbery, just as

Bousley     focused          on    underlying          criminal      conduct         relating      to

firearms.

        Perhaps        the        criminal        conduct       inquiry          can     best       be

illustrated       by    a    hypothetical.              Consider         a    defendant      who   is

charged with second-degree murder, a homicide crime, but who

later    negotiates          a    plea    bargain       whereby      he       pleads     guilty    to

voluntary manslaughter.                  Under Bousley, if that defendant later

wishes to attack his guilty plea to the lesser crime with a

claim of actual innocence, he must show that he is factually

innocent    of    the        second-degree         murder       charge         as    well    as    the

voluntary manslaughter charge to which he pleaded guilty. In

other    words,    a     defendant         making       a    claim    of      actual     innocence

after a negotiated guilty plea must show that he is factually

innocent of the underlying criminal conduct—use of a firearm in

Bousley,       robbery            in     Lyon,     and        homicide         in      the    above

hypothetical.           Here, the dismissed counts related to separate

allegations of different criminal conduct.                                Neither Bousley nor

Lyons    nor     common          sense    requires          Adams    to      show    that    he    is

actually innocent of other, dissimilar charged conduct in order

to   show   that       he     is       actually    innocent         of       being   a   felon     in

possession of a firearm, when he was not, in fact, a convicted

felon when he possessed the firearm.

                                                  12
      We conclude Adams has made the requisite showing of actual

innocence, and we will, therefore, grant his § 2255 motion and

vacate his § 922(g) conviction.



                                     III.

      Finally,   we    are    compelled    to    note   our   concern    with   the

government’s suggestion at oral argument and again in briefing

after argument, that, if we vacate Adams’s § 922(g) conviction

because we conclude Adams is actually innocent of the crime of

conviction, the government would seek to reinstate the dismissed

counts against Adams pursuant to 18 U.S.C. § 3296 and would seek

to add at least an additional fifty years to Adams’s current

sentence of twenty years in prison. 2            The government indicated it

may seek to add the additional fifty years even though nothing

in   our   opinion    today    requires    the    district    court     to   lessen

Adams’s current sentence of twenty years imprisonment.

      Indeed, in the event we reached the holding we reach today,

the government asked us to reinstate the dismissed charges of

the indictment.       Appellee’s Br. 26.          We decline to do so.          The

government    treads    dangerously       close    to   punishing       Adams   for

      2Indeed, Adams was concerned enough about this possibility
that he asked us to defer our ruling beyond January 21, 2016 to
allow him to consult with counsel about whether the pursuit of
this appeal was worth the risk of five decades additional
imprisonment.   As this opinion is issued after January 21, we
hereby deny Adams’s motion as moot.


                                      13
pursuing what we have ultimately determined to be a          meritorious

claim of actual innocence.      “To punish a person because he has

done what the law plainly allows him to do is a due process

violation of the most basic sort.”          United States v. Goodwin,

457 U.S. 368, 372 (1982) (citation and quotation marks omitted).

     Just as the criminal justice system must see the guilty

convicted and sentenced to a just punishment, so too it must

ferret out and vacate improper convictions.           Because Adams was

not a convicted felon at the time of the charged offense, it was

not illegal under § 922(g) for him to possess a firearm.                He

should not remain convicted of a crime of which he is, under our

precedent in Simmons and Miller, actually innocent.            We vacate

Adams’s   §   922(g)   conviction   and   its   attendant   sentence   and

special assessment.     We direct the entry of judgment in favor of

Adams on his § 2255 motion without remand.

                                                                 VACATED




                                    14
