                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 15-6589


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ARNOLD PAUL BURLESON,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:13-cr-00070-CCE-1; 1:13-cv-01158-CCE-LPA)


Argued:   January 28, 2016                 Decided:   March 8, 2016


Before GREGORY and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.


Reversed, vacated, and remanded by published opinion.         Judge
Harris wrote the opinion, in which Judge Gregory and         Senior
Judge Davis joined.


ARGUED:   Kevin F. King, COVINGTON & BURLING LLP, Washington,
D.C., for Appellant.    Harry L. Hobgood, OFFICE OF THE UNITED
STATES ATTORNEY, Greensboro, North Carolina, for Appellee.  ON
BRIEF:   Robert A. Long, Jr., Gregory L. Halperin, COVINGTON &
BURLING LLP, Washington, D.C., for Appellant.     Ripley Rand,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.
PAMELA HARRIS, Circuit Judge:

     Arnold       Paul    Burleson    was           convicted   of     several       North

Carolina felony offenses between 1964 and 1985.                        Based on those

convictions, he pled guilty in 2013 to possession of a firearm

by a convicted felon, 18 U.S.C. § 922(g), and was sentenced to a

fifteen-year mandatory minimum term of imprisonment under the

Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e).                          Several

months   after      his   sentence    was       imposed,     Burleson        filed   a    28

U.S.C. § 2255 motion asserting that he was actually innocent of

the § 922(g) offense.            According to Burleson, because his civil

rights     had    been    restored    by        North      Carolina    following         his

discharge from parole and long before his 2012 arrest, none of

his prior state convictions was a predicate felony conviction

for purposes of § 922(g) or § 924(e).                      We agree.         And because

Burleson pled guilty to a crime he could not commit, we vacate

Burleson’s conviction and sentence and remand with instructions

to grant his § 2255 motion.



                                           I.

     In September 2012, officers with the Sheriff’s Department

of Rowan County, North Carolina, responded to a report that an

intoxicated       elderly    male    with       a    handgun    was    committing         an

assault.         When   police   arrived        at   the   scene,     they    discovered

Burleson and asked if he had a weapon.                      Burleson admitted that

                                            2
he    did   and     produced    a     Taurus     .357       Magnum     caliber        handgun.

Burleson     was    subsequently       indicted        by     a    federal      grand    jury,

charged with possession of a firearm by a convicted felon, see

18 U.S.C. § 922(g), and as an armed career criminal, see 18

U.S.C. § 924(e).

       In order to be a felon in possession under § 922(g), a

defendant      by     definition        must       have       an     underlying         felony

conviction on his record.               Section 922(g) defines a qualifying

predicate     conviction         as    one       for    “a        crime     punishable     by

imprisonment        for   a    term    exceeding        one       year.”        § 922(g)(1).

Violations of § 922(g) ordinarily carry a maximum sentence of

ten years’ imprisonment and no mandatory minimum.                                   18 U.S.C.

§ 924(a)(2).        But when a defendant has at least three previous

convictions for certain “crime[s] punishable by imprisonment for

a    term   exceeding     one    year,”      the   ACCA       calls       for   a   mandatory

minimum sentence of fifteen years.                 § 924(e).

       Burleson and his trial counsel believed that Burleson had

no sensible choice but to plead guilty to the § 922(g) offense,

agreeing during the plea colloquy that Burleson had at least one

prior conviction for a crime punishable by more than one year.

Because     Burleson’s        presentence        investigation         report       indicated

that he had five such convictions on his record, all from North

Carolina     and     between     the    years      1964       and     1985,     the     ACCA’s

mandatory fifteen-year sentence also appeared to be triggered.

                                             3
At sentencing, Burleson did not object to the treatment of his

prior     convictions       as     qualifying       felony     convictions    under

§ 924(e), and the court was left with “no choice” but to impose

the fifteen-year minimum sentence.                  J.A. 54.    Burleson did not

file a direct appeal.

      A few months after the district court entered its judgment,

however, Burleson filed a pro se motion under 28 U.S.C. § 2255,

in which he asked the court to vacate his conviction because his

prior North Carolina convictions do not qualify as predicate

felony convictions under § 922(g). 1               For the first time, Burleson

pointed    to    the     1986    Firearms       Owners’   Protection   Act,   which

defines the term “crime punishable by imprisonment for a term

exceeding one year” as used in § 922(g) and § 924(e), and limits

the type of convictions that may be used as predicates under

those provisions.          See 18 U.S.C. § 921(a)(20).             Most important

here, the Act excludes any conviction for which a person “has

had   civil     rights    restored,”    “unless      such . . . restoration      of


      1Because Burleson failed to raise this issue on direct
review, he is precluded from doing so in his § 2255 motion
unless he can demonstrate either “cause” and actual “prejudice,”
or that he is “actually innocent.”        See Bousley v. United
States, 523 U.S. 614, 622 (1998).     Burleson’s claim — that he
legally and factually could not have committed a § 922(g)
offense because he did not, at the time of the purported
offense, have a predicate felony conviction on his record —
falls squarely into the second category, see United States v.
Adams, No. 13-7107, 2016 WL 682950, at *3–5 (4th Cir. Feb. 19,
2016), and the government does not argue otherwise.


                                            4
civil rights expressly provides that the person may not ship,

transport, possess, or receive firearms.”                       Id.       In other words,

if a felon has had his civil rights restored, then his prior

felony   conviction       may    no    longer      serve     as    a    predicate       for   a

violation of § 922(g) (or sentencing as an armed career criminal

under § 924(e)) unless the state restricts his firearm rights as

contemplated by § 921(a)(20).

     That       exclusion    is       critical      here     because,        as    Burleson

explained    in    his    § 2255      motion,      his     civil    rights       were   fully

restored by operation of state law in 1993, almost two decades

before    the     2012    arrest      that    led     to    his        federal    felon-in-

possession charge under § 922(g).                     In March 1988, Burleson’s

unconditional discharge from parole on his last state conviction

immediately restored his civil rights to vote, hold office, and

serve on a jury.          See N.C. Gen. Stat. §§ 13–1, 13–2.                       In March

of 1993, after the expiration of a five-year waiting period,

Burleson’s        firearm       rights       also        were      automatically          and

unconditionally      restored         by    operation      of     North    Carolina      law.

See id. § 14–415.1 (1975).                 So as of 1993, Burleson argued, his

civil    rights    were     restored,        and    “such       restoration”       did    not

provide, “expressly” or otherwise, for any restriction on his

firearm rights.

     The government did not disagree, or dispute that in 1993,

§ 921(a)(20)      excluded      Burleson’s         prior    state       convictions      from

                                             5
serving as predicates for a federal felon-in-possession charge.

But     according        to     the        government,          what       matters   under

§ 921(a)(20)’s         “unless    clause”          —    under      which    a   conviction

subject to civil rights restoration may continue to serve as a

predicate    if     “such      restoration”            “expressly      provides”     for   a

restriction       on    firearm       rights       —    is   not    whether     Burleson’s

firearm rights were restricted at the time his civil rights were

restored, but whether they were restricted at the time of his

arrest on the § 922(g) charge.                 And at that time, the government

explained, Burleson’s firearm rights were indeed restricted, by

a state law passed in 1995 — two years after full restoration of

Burleson’s civil rights — that prohibits all people with felony

convictions from possessing firearms, regardless of whether they

were convicted after the law’s effective date or, like Burleson,

before.     See        N.C.    Gen.    Stat.       §    14–415.1(a)        (1995).    That

retroactive 1995 statute, the government argued, activated the

unless    clause         and     effectively            revived        Burleson’s    prior

convictions as predicates under § 922(g) and § 924(e).

      The district court referred Burleson’s § 2255 motion to a

magistrate judge for a report and recommendation.                               Relying on

two unpublished Fourth Circuit decisions analyzing the same 1995

North    Carolina       statute       at   issue       here,    the    magistrate    judge

agreed    with     the    government         that       in     determining      whether    a

restoration of civil rights provides for a firearm restriction

                                               6
under      § 921(a)(20)           —     and   thus       whether      a       prior          conviction

qualifies     as        a    predicate        under      § 922(g)         —       a    court       should

consider state firearm restrictions in effect at the time of the

§ 922(g) arrest, not the law in effect at the time of the civil

rights      restoration.                 Consequently,          the           magistrate             judge

recommended that Burleson’s § 2255 motion be denied and that a

certificate of appealability be denied as well.

       Relying,         like      the    magistrate        judge,     on          our       unpublished

decisions,        the       district     court      adopted     the       magistrate            judge’s

recommendation              and   denied      Burleson’s        motion            to        vacate     his

conviction.         But        the    district         court   issued         a       certificate       of

appealability, recognizing that “Burleson has made a substantial

showing of the denial of a constitutional right.”                                            J.A. 134.

Acknowledging support for Burleson’s position in our published

decision     in    United         States      v.    Haynes,     961       F.2d         50    (4th     Cir.

1992), as well as cases from other federal courts of appeals,

the    district     court         questioned           “whether . . . Burleson’s                     prior

convictions provide a sufficient basis for his conviction under

18 U.S.C. § 922(g)(1).”                 J.A. 134.

       This timely appeal followed.



                                                   II.

       As all parties agree, this case turns on our interpretation

of    18   U.S.C.       § 921(a)(20),          which      limits      the         class       of     prior

                                                   7
convictions that may serve as predicates for a federal felon-in-

possession charge or a sentence as an armed career criminal. 2                           We

review the district court’s interpretation of § 921(a)(20) de

novo.    See Haynes, 961 F.2d at 51.

                                         A.

     The        Firearms     Owners’     Protection          Act        defines    “crime

punishable by imprisonment for a term exceeding one year” as it

is used to identify predicate felony convictions for § 922(g)’s

felon-in-possession offense, as well as for § 924(e)’s enhanced

sentences.            See   § 921(a)(20).            Under        the     Act,    “[w]hat

constitutes       a     conviction”    for       purposes    of    those     provisions

“shall     be    determined      in    accordance       with       the     law    of   the

jurisdiction       in    which   the   [prior       criminal]       proceedings        were

     2 On appeal, Burleson’s primary contention is that his trial
counsel was constitutionally ineffective for failing to argue
that he was actually innocent of the charged offense in light of
§ 921(a)(20).     And ineffective assistance may well be an
alternative basis for a grant of relief on Burleson’s § 2255
motion.   But as the government agrees, whether the claim is
styled as one of ineffective assistance or actual innocence, it
rises or falls on the merits of Burleson’s statutory claim: that
his prior North Carolina convictions are not predicates under
§ 922(g) and § 924(e) in light of the restoration exemption of
§ 921(a)(20).    If that is correct, then Burleson cannot be
guilty of a § 922(g) felon-in-possession charge, and his
conviction and accompanying sentence are invalid.      See Adams,
2016 WL 682950, at *5 (vacating § 922(g) conviction on
collateral review because prior conviction did not qualify as
predicate felony for felon-in-possession charge); Miller v.
United States, 735 F.3d 141, 146–47 (4th Cir. 2013) (same).




                                             8
held” — here, North Carolina.                    Id.       And pivotal here, “[a]ny

conviction . . . for which a person . . . has had civil rights

restored     shall       not    be   considered            a    conviction . . . unless

such . . . restoration of civil rights expressly provides that

the     person     may    not    ship,      transport,           possess,       or    receive

firearms.”       Id. (emphasis added).

      In this circuit, it is settled that courts must consider

the “whole of state law” — not just the face of a certificate

granting    the     restoration       of    civil      rights,      but       also   relevant

state statutes — to determine whether the defendant has had his

civil     rights     “restored”       and     if       a       firearm    restriction        is

applicable.       See United States v. McLean, 904 F.2d 216, 218 (4th

Cir. 1990).         Here, nobody disputes that under the “whole of

state law,” Burleson’s civil rights were indeed restored without

any   firearm      restriction       in    1993,    many        years    before      the   2012

arrest that gave rise to this case.                        For Burleson, that is the

end of the matter:              His 1993 restoration did not “expressly

provide[]” for any restriction on firearm rights, and so under

the plain language of § 921(a)(20), his prior convictions do not

count as predicate convictions under § 922(g) or § 924(e).                                  But

the government points to the 1995 amendment to North Carolina

law that retroactively barred Burleson from possessing firearms,

and argues that at the time of Burleson’s 2012 arrest, state law

did     “expressly       provide[]”        that     Burleson            may    not    possess

                                             9
firearms.    So this case boils down to one question:                       In applying

§ 921(a)(20)’s      “unless   clause,”         do     we    look    to    state   firearm

restrictions in effect at the time Burleson’s civil rights were

restored, or to those in effect when Burleson was arrested on

the § 922(g) charge?

       We think the text of § 921(a)(20) unambiguously answers

that question in Burleson’s favor, pointing us to the law that

governed at the time of restoration.                       The key statutory phrase

is “unless such . . . restoration . . . expressly provides” for

a firearm restriction.        “Such restoration” plainly “refers back

to the restoration of civil rights discussed in the previous

clause.”     United States v. Osborne, 262 F.3d 486, 491 (5th Cir.

2001)    (holding     that    law    at        time        of    restoration      governs

§ 921(a)(20)    inquiry).       By   stating          that      firearm    restrictions

must    be   linked    to     the    restoration                itself,    § 921(a)(20)

necessarily excludes state-law restrictions enacted after that

restoration has been effected.             “[I]t cannot be that ‘such . . .

restoration’ includes laws that had not been passed at the time

the restoration occurred.”           Id.       And that reading is confirmed

by use of the present tense in the phrase “expressly provides,”

the “plain meaning” of which is that courts must determine the

effect of a restoration of civil rights “at the time it is

granted and cannot consider whether the defendant’s civil rights

later were limited or expanded.”               See United States v. Cardwell,

                                          10
967 F.2d 1349, 1350–51 (9th Cir. 1992) (holding that law at time

of restoration governs § 921(a)(20) inquiry).

       Congress        could     have       enacted      a     statute          effectuating           the

government’s           position,        providing             that        restoration             of     a

defendant’s civil rights precludes use of a prior conviction

“unless    current       state       law     expressly         provides”          for       a    firearm

restriction.           But    that     is    not       what    the        statute       says.          See

Osborne, 262 F.3d at 491 (statute “does not read ‘unless state

law   expressly         provides        that       the        person        may       not       possess

firearms’”).              Instead,           Congress           specified             that        “such

restoration”           must     “expressly              provide[]”              for     a        firearm

restriction,       and        that    language          makes        it    clear        that      post-

restoration enactments by the convicting state cannot restore a

previously negated predicate conviction for purposes of § 922(g)

and § 924(e).

      The government does not attempt to reconcile its position

with the text of the unless clause.                           Instead, it points to our

cases holding that courts must look to the “whole of state law”

to determine if a felon’s civil rights have been restored fully

under § 921(a)(20), see McLean, 904 F.2d at 218, and argues that

the   “whole      of    state        law”    includes         the     1995        North         Carolina

firearm    restriction          that        was    in     effect          when        Burleson         was

arrested     in    2012.         But        that       conflates          two    very       different

questions.        The first is whether courts may consult not only the

                                                  11
face of an individualized restoration certificate but also the

operation of general state statutes in deciding if civil rights

have been “restored” and if a firearm restriction applies.                       As

noted   above,    our   court    has    answered       that   question    in    the

affirmative, allowing reference to the “whole of state law” in

applying § 921(a)(20).       But that does not resolve the separate

question presented today: whether the state statutes that govern

are those in effect at the time civil rights are restored, or

those in effect at the time of a subsequent § 922(g) arrest.

     The Courts of Appeals for the Fifth, Eighth, Ninth, and

Tenth Circuits have considered that question and come to the

same conclusion as ours, holding that the text of § 921(a)(20)

unambiguously requires courts to “look to the law at the time a

defendant’s   civil     rights   were    restored,      without     reference    to

later changes in the law.”        Osborne, 262 F.3d at 491; see United

States v. Norman, 129 F.3d 1393, 1397 (10th Cir. 1997); United

States v. Wind, 986 F.2d 1248, 1251 (8th Cir. 1993); Cardwell,

967 F.2d at 1351.       Only the Seventh Circuit appears once to have

reached a contrary conclusion, see Melvin v. United States, 78

F.3d 327, 330 (7th Cir. 1996), but in a more recent case that

court, too, applied “state law and practice at the time of the

asserted   restoration     of    civil       rights”    to    the   §   921(a)(20)

inquiry, see United States v. Adams, 698 F.3d 965, 968–69 (7th

Cir. 2012).      Application of the law in effect on the date of a

                                        12
person’s       § 922(g)           arrest       may       be    “problematic,”            the      court

concluded,          when,    as       here,    “a    state         restores    a    felon’s         civil

rights and then changes its law after the restoration.”                                        Id. at

969.     We think so, too.                North Carolina is entitled, of course,

to pass retroactive legislation that alters a felon’s right to

possess firearms under state law.                             But under the plain text of

§ 921(a)(20),          once       a    conviction            for    which     rights      have       been

restored       ceases        to       count    as        a    predicate       for       federal       law

purposes, a subsequent change in state law will not revive it.

                                                    B.

       The magistrate judge and district court reached a different

conclusion, in reliance on a pair of unpublished Fourth Circuit

decisions taking the government’s view of § 921(a)(20).                                        But we

have published precedent that directly addresses the question at

issue    here,       and     it       adopts    Burleson’s           reading       of    the    unless

clause, not the government’s.

        In    our     1992    decision          in       United      States        v.    Haynes,      we

encountered the same temporal sequence we confront today:                                              A

defendant’s          civil    rights          were       fully      restored        after      he    was

discharged from parole on a state felony conviction, three years

later        West     Virginia          passed       a       statute        barring       previously

convicted felons from carrying firearms, and one year after that

the defendant was discovered in possession of a firearm.                                             See

961 F.2d at 51–52.                    As here, the government argued that the

                                                    13
defendant’s      prior    felony         conviction             qualified          as    a    predicate

offense under § 922(g) because at the time of his arrest on that

charge, his firearm rights were restricted by operation of the

post-restoration         state      statute.               Id.      But       we    rejected          that

argument    because       “at      the     time          that    [the     defendant’s]               civil

rights were restored, it was not against West Virginia law for a

convicted   felon        to    possess          a    firearm.”            Id.      at        53.     West

Virginia’s “subsequent enactment of [a firearm restriction],” we

reasoned,    “does       not    alter       the          fact    that     section            921(a)(20)

excluded the defendant from the definition of a convicted felon

for purposes of section 922(g)(1).”                        Id. at 52–53.

       Although Haynes would appear to foreclose the government’s

argument,    the    government           contends           —    and     the       district          court

agreed — that the case is distinguishable.                                    According to the

government,       Haynes           rests        not        on      an     interpretation                of

§ 921(a)(20)’s       unless         clause           but     instead          on        retroactivity

concerns:         West        Virginia’s            laws     are        presumed         to        operate

prospectively      only,        and        so       relying        on     a     post-restoration

enactment    to    limit       a    defendant’s             firearm       rights          would      have

amounted    to    impermissible            retroactivity.                 In       fairness,          that

characterization is not entirely without support in our case

law.   The government has uncovered a parenthetical in a footnote

that describes Haynes as turning on West Virginia’s presumption

against retroactivity.               See United States v. O’Neal, 180 F.3d

                                                    14
115, 121 n.6 (4th Cir. 1999).               And there are the two unpublished

opinions      on     which    the    magistrate        judge    and   district      court

relied,      both    of     which   involve      the   same    1995    North    Carolina

statutory restriction at issue in this case, and both of which

adopt       the    government’s      view     of   §    921(a)(20)        without    even

mentioning Haynes.            See United States v. Hairston, 364 F. App’x

11,   16–17       (4th    Cir.   2010)    (convictions         formerly      excluded   as

predicates under § 921(a)(20) become predicates upon enactment

of 1995 firearm restrictions); United States v. Brady, 438 F.

App’x 191, 196 (4th Cir. 2011) (same).

        To the extent there has been a lack of clarity as to the

import of our decision in Haynes, we can resolve it now. 3                          As we

read Haynes, it is a straightforward statutory interpretation

case, establishing that under § 921(a)(20)’s unless clause, “we

refer to the whole of [state] law in effect at the time that

[the defendant’s] civil rights were restored.”                         961 F.2d at 53

(emphasis         added).        Haynes   does     acknowledge        West    Virginia’s

        3
       Our characterization of Haynes in O’Neal is not the law of
the circuit and does not bind this court. See United States v.
Gowing, 683 F.3d 406, 408–09 (2d Cir. 2012) (parenthetical in a
footnote interpreting statute is a “stray remark[]” that does
not bind court); Nicor Supply Ships Assocs. v. Gen. Motors
Corp., 876 F.2d 501, 506 (5th Cir. 1989) (“parenthetical
description of another case, contained in a footnote,” is
“obiter dicta, not precedent” and “do[es] not bind [the court]
as the law of the circuit”).    Nor, of course, do our decisions
in Hairston and Brady, which are unpublished and therefore have
no precedential effect in this circuit.      Hogan v. Carter, 85
F.3d 1113, 1118 (4th Cir. 1996).


                                            15
presumption against retroactivity, but only in the course of

declining to rule on the defendant’s alternative argument that

the   presumption      would    be    violated      by    application        of    a    post-

restoration firearms restriction — an argument rendered moot by

the     court’s      holding    that     regardless           of     whether       it     was

retroactive, a post-restoration firearms restriction would not

revive a prior conviction under § 921(a)(20).                       Id. at 52–53.

      We think the reasoning of Haynes is clear enough.                            But were

there    any    doubt,     it   is   worth       noting      that    the     government’s

reading would render all but a few sentences of the opinion

meaningless.         It also would surprise our sister circuits, which

have relied on Haynes as among the cases holding that courts

must look to the state law in effect at the time a defendant’s

civil    rights      are   restored    in    applying        § 921(a)(20)’s            unless

clause.        See   Osborne,    262   F.3d       at   491    &     nn.18,    20    (citing

Haynes); Norman, 129 F.3d at 1397 & n.4 (same); Cardwell, 967

F.2d at 1351 (same).

      In short, our decision today is compelled not only by the

text of § 921(a)(20) but also by this court’s prior decision in

Haynes.    Under the straightforward text of the unless clause and

under Haynes, the result is the same:                        Burleson’s prior North

Carolina felony convictions cannot serve as predicates for his

felon-in-possession charge under § 922(g) or for his sentence as

an armed career criminal under § 924(e).                      For these federal-law

                                            16
purposes, North Carolina’s post-restoration change in state law

is of no moment. 4



                                     III.

     Because      Burleson   did    not      have    a    qualifying        predicate

conviction on his record at the time of the charged offense, it

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

cannot   remain    convicted   of   a     crime     of    which   he   is   actually

innocent.      We therefore reverse the judgment of the district

court denying relief, vacate Burleson’s § 922(g) conviction and

attendant   sentence,    and   remand        to     the    district    court    with

instructions to grant Burleson’s § 2255 motion.



                                             REVERSED, VACATED, AND REMANDED




     4 Whether Burleson can be charged under state law is a
different question on which we express no view.     We note that
North Carolina originally charged Burleson with a state-law
felon-in-possession offense, see N.C. Gen. Stat. § 14–415.1, but
dismissed that charge upon the filing of the federal indictment.


                                        17
