                                    PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                     No. 18-6283


MARCUS HAHN,

                   Petitioner – Appellant,

            v.

WARDEN BONITA MOSELEY, Federal Correctional Institution, Edgefield,
South Carolina,

                   Respondent – Appellee.


Appeal from the United States District Court for the District of South Carolina, at
Beaufort. Joseph F. Anderson, Jr., Senior District Judge. (9:16–cv–03235–JFA)


Argued: May 9, 2019                                         Decided: July 24, 2019


Before GREGORY, Chief Judge, WYNN, and THACKER, Circuit Judges.


Reversed and remanded with instructions by published opinion. Chief Judge Gregory
wrote the opinion, in which Judge Wynn and Judge Thacker joined. Judge Wynn wrote a
concurring opinion.


ARGUED:       Susan Michelle Pelletier, MUNGER, TOLLES & OLSON LLP,
Washington, D.C., for Appellant. John Michael Pellettieri, OFFICE OF THE UNITED
STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF: Chad Golder,
MUNGER, TOLLES & OLSON LLP, Washington, D.C., for Appellant.
Brian A. Benczkowski, Assistant Attorney General, Matthew S. Miner, Deputy Assistant
Attorney, General, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Sherri A. Lydon, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appellee.




                                      2
GREGORY, Chief Judge:

      Petitioner-Appellant Marcus Hahn appeals the final order of the district court

denying his petition for a writ of habeas corpus under 28 U.S.C. § 2241. Because Hahn’s

current sentence stems from faulty arithmetic based on a now-obsolete scheme of

statutory interpretation, we conclude that Hahn’s petition meets the requirements of 28

U.S.C. § 2255(e), the savings clause. We therefore reverse the district court’s order and

remand with instructions to grant Hahn’s writ of habeas corpus. 1




                                             I.

      On December 31, 1999, law enforcement from various state and federal agencies

executed a search warrant for Hahn’s home near Albuquerque, New Mexico. Hahn was

arrested after law enforcement discovered and seized marijuana plants and firearms

during that search. On December 7, 2000, at the conclusion of a jury trial in the United

States District Court for the District of New Mexico, a jury convicted Hahn of the

following four counts: (1) intentionally manufacturing 100 or more marijuana plants; 2

(2) opening and maintaining a place for the purpose of manufacturing, distributing, and



      1
          The Government requested that this Court stay the current proceedings in
anticipation of the Supreme Court’s decision whether to grant certiorari in United States
v. Wheeler, 734 F. App’x 892 (4th Cir. 2018). The Government’s request is moot
because the Supreme Court denied certiorari in Wheeler on March 18, 2019. See United
States v. Wheeler, 139 S. Ct. 1318 (2019).
      2
          See 21 U.S.C. § 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2.


                                             3
using marijuana; 3 (3) possessing firearms in furtherance of the intentional manufacturing

of 100 or more marijuana plants; 4 and (4) possessing a firearm in furtherance of the

opening and maintaining a place for the purpose of manufacturing, distributing, and using

marijuana. 5 Counts III and IV are based on the same gun collection, which includes 21

firearms.

      In 2001, the district court sentenced Hahn to 480 months’ imprisonment for these

gun and drug offenses. He received 60 months’ imprisonment for Count I, a concurrent

27 months for Count II, a consecutive 120 months for Count III, and a consecutive 300

months for Count IV. 6

      In 2002, on direct appeal to the Tenth Circuit, Hahn challenged the legality of his

sentence for his second firearm conviction.       He contended that the district court

impermissibly treated his second firearm conviction as “second or subsequent” to his first

firearm conviction for purposes of the statute’s sentencing enhancement. Hahn I, 38 F.

App’x at 554. Hahn argued that the court’s approach was in error because the underlying

drug crimes were part of a “continuing incident” and were “coterminous in space and

time.” Id. The Tenth Circuit rejected this argument, relying principally on United States


      3
          See 21 U.S.C. § 856 (a)(1), (b).
      4
          See 18 U.S.C. § 924(c)(1)(A).
      5
          Id.
      6
        The sentencing court characterized the Count IV firearm conviction as a “second
or subsequent” conviction under § 924(c), for which the statute mandated a consecutive
sentence of twenty-five years. United States v. Hahn, 38 F. App’x 553, 554 (10th Cir.
2002) (“Hahn I”).


                                             4
v. Sturmoski, 971 F.2d 452, 461 (10th Cir. 1992) (“[C]onsecutive sentences may be

imposed for multiple 924(c) counts if the offenses underlying each 924(c) count do not

constitute a single offense for double jeopardy purposes.”).      Similar to Hahn, the

defendant in Sturmoski appealed convictions for:      (1) attempting to manufacture a

controlled substance; (2) maintaining a place for manufacturing a controlled substance;

and (3) two 18 U.S.C. § 924(c) convictions for facilitating the aforementioned drug

counts. Hahn I, 38 F. App’x at 555. The Sturmoski court held that “Congress intended

multiple convictions under 924(c), even though the counts involved ‘the same criminal

episode,’ because Congress intended the underlying offenses to be separate.” Id. After

reviewing Sturmoski, the Tenth Circuit in Hahn’s case found that “[t]he only difference

between the situations in Sturmoski and in this case is that one of Hahn’s 924(c)

convictions was for possession in furtherance of manufacture, rather than possession in

furtherance of attempt to manufacture.” Id. Given the factual and legal similarities

between Sturmoski and Hahn’s case, the court found that “Sturmoski clearly controls the

outcome of this case. Hahn’s conviction for maintaining a place for manufacture is

distinct from his manufacture conviction, and his two 924(c) convictions are also

distinct.” Id. The court further ruled that “even if possession of a firearm occurs in

connection with a single criminal episode, a second 924(c) conviction arising out of that

episode can constitute a ‘second or subsequent conviction’ for sentencing purposes.” Id.

The Tenth Circuit therefore affirmed Hahn’s convictions and sentence. Id.

      In 2004, Hahn filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or

correct his sentence in the United States District Court of New Mexico. He argued that


                                           5
“double jeopardy bars multiple § 924(c)(1) firearm convictions based on multiple

predicate offenses which are factually inseparable in terms of time, space and underlying

conduct.” United States v. Hahn, 191 F. App’x 758, 760 (10th Cir. 2006) (citation and

internal quotation marks omitted) (“Hahn II”).       Hahn also argued that “§ 924(c)(1)

contains a number of ambiguities, requiring application of the rule of lenity.” Id. Hahn

explained that he did not previously raise these arguments because he received ineffective

assistance of counsel. The district court dismissed the motion in 2004, concluding that

Hahn’s arguments were procedurally barred and without merit. Id.

      Hahn filed a motion for reconsideration under Federal Rule of Civil Procedure

59(e). He disputed that his double jeopardy claim had been resolved on direct appeal and

moved to amend his § 2255 motion to add more evidence. Id. The district court treated

these motions as successive § 2255 motions and transferred them to the Tenth Circuit.

Hahn appealed this determination, and the Tenth Circuit issued a certificate of

appealability to consider Hahn’s § 924(c)(1) arguments. The Tenth Circuit subsequently

affirmed the dismissal and held that: (1) Hahn forfeited his double jeopardy claim and it

was procedurally barred because he did not raise it on direct appeal; (2) even if his double

jeopardy claim was not procedurally barred, counsel’s failure to raise it would not have

constituted ineffective assistance of counsel because Sturmoski controls and renders

Hahn’s double jeopardy claim meritless; and (3) as to the ambiguity argument, a motion

to vacate could not be used, absent an intervening change in circuit law, to raise an

argument that was resolved on direct appeal. Hahn II, 191 F. App’x at 760-61.




                                             6
       In 2015, Hahn filed a motion under Rule 60(b)(4), alleging that he was entitled to

relief because of an en banc Tenth Circuit decision issued after the dismissal of his

petition. United States v. Rentz, 777 F.3d 1105 (10th Cir. 2015). Hahn argued that Rentz

altered the substantive law in the Tenth Circuit by establishing a new statutory

framework interpreting § 924(c). Specifically, Hahn contended that Rentz added a unit-

of-prosecution requirement for a § 924(c) conviction and therefore entitled him to relief

denied under Sturmoski. Unit-of-prosecution questions ask whether the conduct at issue

“constitutes one, or several, violations of a single statutory provision.” Callanan v.

United States, 364 U.S. 587, 597 (1961). In Rentz, the Tenth Circuit addressed the issue

of whether, as a matter of statutory construction, § 924(c) “authorizes multiple charges

when everyone admits there’s only a single use, carry, or possession.” 777 F.3d at 1108.

After recognizing that this question was separate from the double jeopardy inquiry, the

court ruled that each § 924(c) charge “requires an independent use, carry, or possession.”

Id. at 1115. Before Rentz, when Sturmoski was controlling law, multiple charges under

§ 924(c) were permissible as long as they did not run afoul of the Double Jeopardy

Clause. After Rentz, the Tenth Circuit, based on the language of the statute itself, held

that multiple charges under § 924(c) based on the same conduct were not proper even if

they complied with the Double Jeopardy Clause. Thus, Rentz found that it was improper

to allow multiple charges to arise from a single possession under the language of the

statute. Id.

       The district court determined that Hahn’s motion should be treated as a second or

subsequent § 2255 motion—i.e., a motion that could not be filed without precertification


                                            7
by the Court of Appeals—and transferred it to the Tenth Circuit. Hahn then filed a

motion to remand before the Tenth Circuit to allow the district court to consider the

merits of his Rule 60(b) motion or, in the alternative, for authorization to file a second or

successive § 2255 motion. The Tenth Circuit denied both the motion to remand and

Hahn’s request to file a second or successive § 2255 motion based on a procedural

impediment. Rentz was a Tenth Circuit decision, and thus did not meet the requirements

for a second or subsequent motion.

      At some point after 2015, correctional officials transferred Hahn to a facility in

South Carolina, where he is currently detained. Hahn filed the instant petition under 28

U.S.C. § 2241 in the United States District Court for the District of South Carolina.

Pursuant to § 2241, federal courts have jurisdiction over habeas corpus petitions from

federal inmates “in custody in violation of the Constitution or laws or treaties of the

United States.” 28 U.S.C. § 2241(c)(3). Habeas petitions filed under this section must be

filed in the jurisdiction where the federal prisoner is detained. 28 U.S.C. § 2241(a)(c)(3).

Hahn’s appeal is properly before us because he is detained in South Carolina.

      Hahn contended that he was actually statutorily innocent of his second § 924(c)

conviction after Rentz because the charge was procedurally improper. The magistrate

judge issued a report that recommended denying Hahn’s petition because Hahn could not

meet the three-pronged test outlined in In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000).

That case holds that “§ 2255 is inadequate and ineffective to test the legality of a

conviction” where:




                                             8
      (1) at the time of the conviction, settled law of this circuit or the Supreme
      Court established the legality of the conviction; (2) subsequent to the
      prisoner’s direct appeal and first § 2255 motion, the substantive law
      changed such that the conduct of which the prisoner was convicted is
      deemed not to be criminal; and (3) the prisoner cannot satisfy the
      gatekeeping provisions of § 2255 because the new rule is not one of
      constitutional law.

Id. Hahn objected to the magistrate’s report and recommendation, but the district court

adopted the magistrate judge’s recommendation and denied his petition. Hahn filed a

Rule 59 motion to alter or amend the judgment. See Fed. R. Civ. P. 59(e). The district

court denied the motion as without merit, and Hahn timely appealed. 7



                                           II.

      Generally, defendants who are convicted in federal court must pursue habeas relief

from their convictions and sentences through the procedures set out in 28 U.S.C. § 2255.

Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010). Nonetheless, § 2255 includes a

“savings clause” that preserves the availability of § 2241 relief when § 2255 proves

“inadequate or ineffective to test the legality of a [prisoner’s] detention.” 28 U.S.C.

§ 2255(e).

      As the district court properly recognized, in determining whether to grant habeas

relief under the savings clause, we consider (1) whether the conviction was proper under

the settled law of this circuit or Supreme Court at the time; (2) if the law of conviction


      7
         The district court had jurisdiction over Hahn’s § 2241 petition under 28 U.S.C.
§ 1331. This Court has jurisdiction over this appeal under 28 U.S.C. §§ 1291(a) and
2253(a).


                                            9
changed after the prisoner’s direct appeal and first § 2255 motion; and (3) if the prisoner

cannot meet the traditional § 2255 standard because the change is not one of

constitutional law. In re Jones, 226 F.3d at 333-34. In evaluating substantive claims

under the savings clause, however, we look to the substantive law of the circuit where a

defendant was convicted. In re Davenport, 147 F.3d 605, 611-12 (7th Cir. 1998); Eames

v. Jones, 793 F. Supp. 2d 747, 750 (E.D.N.C. 2011). Hahn was convicted in the Tenth

Circuit. For this reason, we apply our procedural law, but Tenth Circuit substantive law

governs the petition. We review the district court’s denial of Hahn’s § 2241 petition de

novo. Fontanez v. O’Brien, 807 F.3d 84, 86 (4th Cir. 2015).

                                            A.

      The first prong of In re Jones requires that “at the time of conviction, settled law

of the circuit or the Supreme Court established the legality of the conviction.” 226 F.3d

at 333-34. Here, the legality of the conviction turns on whether it was proper at the time

to charge and convict Hahn with two § 924(c) counts based on the possession of a single

collection of firearms in both: (1) furtherance of intentionally manufacturing 100 or

more marijuana plants and (2) the opening and maintaining of a place for the purpose of

manufacturing, distributing, and using marijuana.

      There are two legal principles that may limit the Government’s power to pursue

multiple charges for the same underlying conduct in this case: (1) the statute’s unit of

prosecution and (2) the Double Jeopardy Clause. At the time of Hahn’s conviction,

Tenth Circuit law held that the only requirement for charging multiple § 924(c)(1)(A)

counts based on a single criminal event was that the crimes of violence or drug


                                            10
trafficking crimes underlying each count be separate to avoid violations of the Double

Jeopardy Clause. 8    See Blockburger v. United States, 284 U.S. 299, 304 (1932)

(explaining that the Double Jeopardy Clause prohibits punishing a defendant for the same

conduct under two distinct statutory provisions unless “each provision requires proof of a

fact which the other does not”). Sturmoski did not address any concerns regarding the

statutory unit of prosecution.

      In Sturmoski, the Tenth Circuit rejected the defendant’s argument that multiple

§ 924(c) convictions for the same underlying conduct were impermissible, reasoning that

“separate convictions can arise from essentially identical facts” if the convictions do not

violate double jeopardy. 971 F.2d at 461. Sturmoski was the governing law at the time

Hahn was charged and convicted. It follows, then, that at the time of conviction the

settled law of the Tenth Circuit established the legality of Hahn’s two convictions

pursuant to the same conduct under § 924(c). Hahn thus meets the first requirement of

our savings clause inquiry.

                                            B.

      Our decision in In re Jones next requires that we ask whether “subsequent to the

prisoner’s direct appeal and first § 2255 motion, the substantive law changed such that

the conduct of which the prisoner was convicted is deemed not to be criminal.” 226 F.3d

at 333-34. Hahn argues that the Tenth Circuit’s 2015 decision in Rentz renders non-

criminal the conduct on which his second § 924(c) conviction was based. We must

       8
        The Tenth Circuit did not rely upon a separate unit-of-prosecution analysis when
determining the propriety of multiple charges or counts.


                                            11
therefore determine whether the rule announced in Rentz establishes that the conduct

underlying Hahn’s second firearm conviction is no longer criminal. We hold that it does.

      In 2013, a panel of the Tenth Circuit heard United States v. Rentz, a case in which

a defendant’s single use of a firearm, resulting in one gun shot, led to convictions for two

crimes: assault and murder. 735 F.3d 1245, 1247 (10th Cir. 2013). The grand jury

indicted the defendant on two counts of use of a firearm in furtherance of a crime of

violence, one for the assault and one for the murder. Id. The defendant moved to dismiss

the second firearm count, arguing that: (1) Congress did not intend to punish a person for

two violations of § 924(c) based on a single use of a firearm and (2) punishment on both

firearm counts would violate the Double Jeopardy Clause. Id. The district court agreed

and granted the defendant’s motion. Id.

      On appeal, the Tenth Circuit reversed.        Id. at 1254.    The panel, relying on

Sturmoski, “held that the proper ‘unit of prosecution’ under § 924(c) is a single

underlying offense—meaning that two convictions under § 924(c) arising from the same

course of conduct were proper under the language of § 924(c).” Id. at 1250.

      The Tenth Circuit later granted rehearing en banc to decide the unit of prosecution

issue that led to the reversal of the district court’s decision. See Rentz, 777 F.3d at 1117.

The Tenth Circuit explained that the question presented was whether, as a “matter of

statutory interpretation, § 924(c)(1)(A) authorizes multiple charges when everyone

admits there’s only a single use, carry, or possession.” Id. at 1108. The court held that

the Government must prove a separate use, carry, or possession for each § 924(c) charge




                                             12
it brings. Id. at 1109. The court thus vacated the panel opinion relying on Sturmoski and

affirmed the district court’s decision. Id. at 1115.

      Hahn argues that the en banc decision in Rentz constitutes a substantial change in

the law because it introduces a new statutory framework that was not present in

Sturmoski. We agree. Under Sturmoski, whether or not conduct could lead to multiple

charges under § 924(c) in the Tenth Circuit depended solely on whether the charge

violated the Double Jeopardy Clause. Now under Rentz, it is not enough that the multiple

charges pass muster under the Double Jeopardy Clause. Rather, multiple charges must

also comply with a unit-of-prosecution statutory analysis that examines how many

distinct instances of conduct exist. When the charges or counts exceed the number of

acts, those extra charges or counts cannot form the basis of additional criminal liability.

In sum, Rentz constitutes a substantive change in the law that renders Hahn’s firearm

possession no longer sufficient to support two § 924(c) convictions.

      The Government advances several arguments to the contrary, none of which we

find persuasive. Relying on Schlup v. Delo, 513 U.S. 298 (1995), the Government

attempts to import a procedural gateway actual innocence analysis into the adjudication

of Hahn’s petition.     The Government argues that Hahn must demonstrate actual

innocence:    that he did not commit the underlying conduct, i.e., possession of the

firearms, in order to warrant relief under the savings clause. The Government asks us to

utilize an analysis that requires a petitioner “to support his allegations of constitutional

error with new reliable evidence.” Schlup, 513 U.S. at 324. This argument fails because

the Fourth Circuit does not require an actual innocence analysis under the savings clause


                                             13
and adopting the Government’s position would be contrary to the settled and established

law of this Circuit. 226 F.3d at 333-34. The test in In re Jones functions as a gateway to

relief without interrogating the factual issues of whether the underlying criminal activity

occurred. In Re Jones assumes that the factual record is settled but requires this Court to

compare prior and current precedent to evaluate whether a substantive change in the law

has occurred. A petitioner satisfies this standard if the substantive change in the law

makes previously illegal conduct no longer a source of criminal liability. In other words,

our analysis is tethered to a change in the law, not a change in the factual underpinnings

or evidence of a criminal record. If this substantive change in the law occurs after the

prisoner’s direct appeal and first § 2255 motion, he satisfies the second requirement of

the In re Jones standard. This is the standard that we use to ascertain a prisoner’s

entitlement to relief under the savings clause.

      Moreover, the Government argues that Rentz does not control because there are

factual differences between Sturmoski and Rentz that make them distinguishable.

However, Rentz outlines a new statutory scheme of interpretation that is not a fact-

dependent inquiry. Indeed, Rentz now defines and requires a unit-of-prosecution analysis

in criminal matters implicating § 924(c). The newly required analysis applies to any

§ 924(c) charge regardless of the particular facts of the case.

      The Government further argues that Hahn’s case involves multiple possessions and

that the petition should therefore still be denied. We also find this argument unavailing.

Hahn was charged with two counts based on a single gun collection that the police

discovered at his home on a single day. The same firearm collection was listed in the


                                             14
indictment as support for both of the firearm counts. The Government argues that Hahn

should still be found to have separate possessions under Rentz because the guns were

found at different locations throughout his house. See United States v. Hutching, 75 F.3d

1453, 1460 (10th Cir. 1996). And yet we discern no cognizable relationship among the

number of guns, the locations of the guns, and the number of § 924(c) counts in Hahn’s

the indictment. For instance, the indictment did not charge that ten of the guns were for

the furtherance of the manufacturing charge based on one location and that eleven of the

guns were for the furtherance of the place-of-manufacture charge based on another

location. The same set of 21 guns was simply listed twice in the indictment, indicating

that the two counts were based on drug activity and a singular possession. Rentz renders

this approach impermissible. 9

      In conclusion, Rentz substantively changed the law of the Tenth Circuit. Because

of this change, Hahn’s petition satisfies the second prong of In re Jones. Only one

firearm possession exists, and therefore—under Rentz—only one § 924(c) charge is

proper here.

                                                C.

      Finally, our decision in In re Jones provides that Hahn can pursue § 2241 relief

only if he “cannot satisfy the gatekeeping provisions of § 2255 because the new rule is


      9
        The Government correctly notes that the Tenth Circuit in Rentz explains that the
exact definition of possession, carry, and use remains unsettled. However, this does not
diminish the Tenth Circuit’s holding in Rentz that where, as here, the Government
charges two § 924(c) counts for the same single carry, use, or possession, the multiple
charges are in error.


                                           15
not one of constitutional law.” 226 F.3d at 333-34. Hahn could not successfully pursue

collateral review under § 2255 because Rentz did not rely on any rule of constitutional

law and no new evidence was proffered. Hahn thus meets the third and final requirement

of the savings clause and is entitled to relief.



                                                    III.

       Hahn’s conviction on Count IV—the second of his § 924(c) convictions—cannot

stand because it is not supported by an independent firearm possession under recent

Tenth Circuit precedent. We therefore reverse the district court’s decision and remand

with instructions to grant Hahn’s writ of habeas corpus and vacate his second conviction

under 18 U.S.C. § 924(c) and the associated consecutive 300-month sentence.



                                    REVERSED AND REMANDED WITH INSTRUCTIONS




                                               16
WYNN, J., concurring:

       I concur fully in the majority opinion.

       I write separately to further explain why the “actual innocence” test proposed by the

government—which the Supreme Court has directed courts to apply in determining

whether a habeas petitioner may pursue a procedurally defaulted constitutional claim, see

Bousley v. United States, 523 U.S. 614 (1998); Schlup v. Delo, 513 U.S. 298 (1995)—does

not apply in determining whether a petitioner is entitled to avail himself of 28 U.S.C.

§ 2255’s “savings clause” on grounds that a later-corrected error of statutory construction

rendered “the conduct of which the prisoner was convicted . . . not criminal.” In re Jones,

226 F.3d 328, 333–34 (4th Cir. 2000) (en banc).

       Under the Schlup/Bousley “actual innocence” test, Petitioner Marcus Hahn would

have to show that “no reasonable juror would have found [him] guilty.” 513 U.S. at 329.

According to the government, the “actual innocence” test requires that a court review “all

the evidence in the record as a whole”—even evidence that the jury did not necessarily

credit in rendering its verdict, that was inadmissible at trial, or that became available only

after trial—“and determine whether it is more likely than not that no reasonable juror would

have found the defendant guilty beyond a reasonable doubt.” Appellee’s Br. at 37. The

government maintains that Petitioner cannot meet this standard because firearms found in

several locations in Petitioners’ house constituted “independent” possessions—with

firearms found in the ground floor of Petitioner’s residence supporting his marijuana

manufacturing offense and firearms found on the second floor of his home supporting his

maintenance of a home for the purpose of marijuana manufacturing, distribution, and use


                                             17
offense.   Appellee’s Br. at 35–36. Significantly, the government never presented that

theory in its indictment or to the jury.

       Several compelling reasons support our conclusion that the actual innocence

framework does not apply in determining whether a petitioner is entitled to pursue relief

under the savings clause as a result of a statutory construction error. First, Jones—which

established this Court’s three-prong test for determining whether a petitioner may avail

himself of the savings clause as a result of a later-corrected error in statutory construction—

does not use the term “actual innocence,” instead requiring a petitioner to show that “the

substantive law changed such that the conduct of which the prisoner was convicted is

deemed not to be criminal.” Jones, 226 F.3d at 333–34 (emphasis added).             The plain

meaning of the phrase “the conduct of which the prisoner was convicted” refers to the

conduct that a jury found beyond a reasonable doubt supported the prisoner’s conviction.

But, as explained above, under the actual innocence set forth in Schlup and further

explicated in Bousley, a court assessing whether a petitioner is entitled to relief is not

limited to the facts the government introduced at trial, let alone to those facts that the jury

found beyond a reasonable doubt.

       Notably, Jones focused not on whether a petitioner was “actually innocent,” but

whether a subsequent change in statutory construction amounted to a “fundamental defect”

in the petitioner’s prosecution. Id. at 332–33 & n.3; see also In re Davenport, 147 F.3d

605, 611 (7th Cir. 1998) (Posner, J.) (“A federal prisoner should be permitted to seek

habeas corpus only if he had no reasonable opportunity to obtain earlier judicial correction

of a fundamental defect in his conviction or sentence because the law changed after his first


                                              18
2255 motion.” (emphasis added)). The Tenth Circuit’s (originally) errant construction of

the statute under Petitioner was convicted, 18 U.S.C. § 924(c)(1), amounts to a

“fundamental defect” amenable correction through Section 2255’s savings clause because

it deprived Petitioner of the chance to argue to the jury that the storage of the numerous

guns in his house did not constitute independent possessions.

       Second, this Court’s holding in United States v. Wheeler, 886 F.3d 415 (4th Cir.

2018)—that a prisoner may avail himself of Section 2255’s savings clause if a retroactive

change in the construction of a federal sentencing statute rendered the petitioner’s sentence

erroneous—runs contrary to an actual innocence requirement. In Wheeler, this Court

rejected the district court’s holding that Jones extended only to convictions tainted by

statutory construction errors, and therefore not to sentences tainted by an error of statutory

construction. 886 F.3d at 428. In reaching that conclusion, this Court emphasized that

the Jones test explicitly applied to “fundamental defects” in “convictions and sentences.” Id.

at 427 (quoting Jones, 226 F.3d at 332–33 & n.2)). Wheeler’s holding that Jones extends

to sentences—not just convictions—establishes that Jones does not require actual

innocence. Indeed, the petitioner in Wheeler, who was originally convicted of conspiracy

to possess with intent to distribute crack and powder cocaine, was not “actually innocent”

of the offense—he in fact possessed the crack and powder—he just was subject to a

incorrectly high mandatory minimum as a result of an error by this Court in construing the

statute under which he was originally sentenced. Id. at 419–21. Applying the actual

innocence standard to challenges to a conviction when we apply the fundamental defect




                                             19
standard in the sentencing context would create the odd result that a lower standard would

apply in the context of sentencing challenges than conviction challenges.

       Third, it makes no theoretical sense to extend the Schlup/Bousley actual innocence

test to the savings clause context, at least in cases like the instant case in which the

petitioner pressed his legal argument in his original proceedings. As explained above, the

Schlup/Bousley actual innocence test applies when a prisoner procedurally defaulted the

claim at issue. Typically, a federal prisoner seeks to rely on Schlup/Bousley actual

innocence test when he cannot meet the “cause” and “prejudice” necessary to excuse the

procedural default under Section 2255. For instance, the prisoner in Bousley, who had

“pleaded guilty to ‘using’ a firearm in violation of 18 U.S.C. § 924(c)(1),” sought to void

his plea on grounds that it was not knowing and voluntary after the Supreme Court clarified

the definition of “using.” 523 U.S. at 616. The prisoner procedurally defaulted the claim

by failing to raise it in his direct appeal. Id. at 622. The Court held that the prisoner could

not establish “cause” for his procedural default because he could have raised the argument

in his direct appeal but failed to do so. Id. at 622–23.

       By contrast, both before his original trial court and on direct appeal, Petitioner

argued that the single indicted possession did not, as a matter of statutory construction,

support his two Section 924(c)(1) convictions. The only reason that argument failed was

because it was foreclosed by circuit precedent. Accordingly, at least when, as here, a

petitioner does not procedurally default a claim, it is improper to subject that petitioner to

a standard more onerous than the cause-and-prejudice standard applied in procedural

default cases.


                                              20
       Finally, it is patently unfair to subject a petitioner to the onerous actual innocence

standard when an appellate court’s errant statutory construction foreclosed the petitioner

from making a potentially meritorious argument to a jury or in a motion for acquittal. As

the majority opinion explains, Petitioner repeatedly argued before his trial court and on

direct appeal that the single indicted possession could not support two Section 824(c)(1)

convictions. Under its actual innocence approach, the government theorizes that the jury

could have found that firearms stored in different parts of the house constituted distinct

possessions. But because circuit precedent foreclosed Petitioner’s unit-of-prosecution

argument—and, therefore, the government never needed to advance an independent

possession argument to the jury—Petitioner was never given the opportunity to argue to

the jury that all the firearms amounted to a single possession.

                                         *****

       I further note that even if Schlup’s actual innocence standard applied—and, as

explained above, this Court rightly holds that it does not—Petitioner would be entitled to

relief because, as the majority opinion explains, his indictment alleges that a single

possession supported both of his 924(c)(1)(A) convictions. In Bousley, the Supreme Court

held that in determining whether a prisoner is “actually innocent,” a court may not consider

factual theories not alleged in a habeas petitioner’s indictment or which, based on record

evidence, the government elected not to charge in exchange for obtaining a guilty plea.

523 U.S. at 624. The government in Bousley indicted and convicted the prisoner for

“using” a firearm in violation of Section 924(c)(1). Id. After the Supreme Court issued a

decision clarifying what constitutes “use” of a firearm for purposes of Section 924(c)(1),


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the prisoner sought relief under Section 2255(a) on grounds that his plea to “using” the

firearm was not voluntary and knowing because he could not have known the correct

meaning of “using,” notwithstanding that he had procedurally defaulted that argument. Id.

at 621. The Court held that the prisoner could not establish the “cause” necessary to excuse

his procedural default, and therefore that the prisoner could only obtain habeas relief

through the actual innocence gateway. Id. at 622. In doing so, the Court expressly rejected

the government’s argument that the prisoner “must demonstrate that he is actually innocent

of both ‘using’ and ‘carrying’ a firearm in violation of § 924(c)(1).” Id. at 624. The Court

explained that the prisoner need not demonstrate that he was actually innocent of “carrying

the firearm” because his “indictment charged him only with ‘using’ firearms” and “there

[wa]s no record evidence that the Government elected not to charge petitioner with

‘carrying’ a firearm in exchange for his plea of guilty.” Id.

        As in Bousley, Petitioner’s indictment charged him only with a single possession—

it did not allege that subsets of the uniform list of firearms set forth in each charge of the

indictment constituted independent “possessions.”        Accordingly, any holding that a

reasonable juror could have found that subsets of the firearms constituted distinct

possessions would amount to an impermissible constructive amendment of the indictment.

See Stirone v. United States, 361 U.S. 212, 215–16 (1960). (“[A]fter an indictment has

been returned its charges may not be broadened through amendment except by the grand

jury itself.”).




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