PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-6254

GORDON LEE MILLER,

Petitioner - Appellant,

v.

UNITED STATES OF AMERICA,

Respondent – Appellee.

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

RICHARD DONALD DIETZ,

Court-Assigned Amicus Counsel.

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Robert J. Conrad,

Jr., Chief District Judge. (3:12-cv-00701-RJC; 3:07-cr-00059-

RJC-1)

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

Before KING, DIAZ, and FLOYD, Circuit Judges.

Vacated and remanded by published opinion. Judge Floyd wrote 

the opinion, in which Judge King and Judge Diaz joined. Judge 

King wrote a separate concurring opinion.

ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH 

CAROLINA, INC., Charlotte, North Carolina, for Appellant. Amy 

Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, 
2

North Carolina, for Appellee. Richard Donald Dietz, KILPATRICK 

TOWNSEND & STOCKTON, LLP, Winston-Salem, North Carolina, for 

Court-Assigned Amicus Counsel. ON BRIEF: Henderson Hill, 

Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, 

INC., Charlotte, North Carolina, for Appellant. Anne M. 

Tompkins, United States Attorney, Charlotte, North Carolina, for 

Appellee.
3

FLOYD, Circuit Judge:

Petitioner Gordon Lee Miller appeals the dismissal of his 

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

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

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

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

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

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

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

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

follow vacate his conviction and remand with instructions to 

grant Miller’s § 2255 petition.

I.

This appeal arises from Miller’s 2008 conviction for a

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

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

Jury for the Western District of North Carolina charged Miller

with possessing a firearm after having been previously convicted 

of one or more crimes punishable by imprisonment for a term 

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

previously been convicted in North Carolina for felony 

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

eight months in prison. He was then convicted in North Carolina 
4

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

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

Structured Sentencing Act, the maximum sentence that Miller 

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

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

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

convictions were considered to be “punishable by imprisonment 

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

the jury found Miller guilty, the district court sentenced him 

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

supervised release. Miller chose not to appeal this ruling. 

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

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

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

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

qualifying predicate convictions. Alternatively, Miller sought 

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

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

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

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

 1 28 U.S.C. § 2255 includes a one-year statute of 

limitations for filing a motion to vacate. This period runs 

from the latest of:

(1) the date on which the judgment of conviction becomes 

final;
5

untimely, asked the district court to vacate Miller’s 

conviction. 

To understand Miller’s claim that he is actually innocent 

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

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

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

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

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

determined by looking at the defendant’s actual conviction and 

not the offense for which he could have possibly been convicted 

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

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

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

U.S.C. § 3559(a)). 

 

(2) the date on which the impediment to making a motion 

created by governmental action in violation of the 

Constitution or laws of the United States is removed, 

if the movant was prevented from making a motion by 

such governmental action;

(3) the date on which the right asserted was initially 

recognized by the Supreme Court, if that right has 

been newly recognized by the Supreme Court and made 

retroactively applicable to cases on collateral 

review; or

(4) the date on which the facts supporting the claim or 

claims presented could have been discovered through 

the exercise of due diligence.

28 U.S.C. § 2255(f)(1)-(4). 
6

After Carachuri, the Supreme Court asked us to reconsider 

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

Simmons’s prior state conviction for which he faced no 

possibility of imprisonment was an offense punishable by 

imprisonment for more than one year that allowed a sentence 

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

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

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

the maximum aggravated sentence that could be imposed for that 

crime upon a defendant with the worst possible criminal 

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

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

this Court changed course, overruling long-standing precedent, 

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

held that a prior conviction under North Carolina law is

punishable by more than one year of imprisonment only if the 

defendant’s conviction, based on his individual offense 

characteristics and criminal history, allowed for such a 

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

maximum sentence that North Carolina courts could have imposed 

for a hypothetical defendant who was guilty of an aggravated 

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

Powell, 691 F.3d 554, 556 (2012). 
7

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

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

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

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

apply Carachuri in the same way that we had previously applied 

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

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

Carachuri announced a procedural rule that was not retroactive 

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

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

procedural requirements that must be followed in applying 

recidivist enhancements and did not alter the range of conduct 

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

559-60. 

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

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

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

failed because, under Powell, Simmons is not retroactively 

applicable on collateral review. Thus, Miller was not entitled 

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

claims for relief. The district court granted a certificate of 

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

Court. Because Miller and the government contend that the 

district court’s ruling was erroneous and his conviction should 
8

be vacated, we appointed Amicus Curiae to defend the reasoning 

of the district court. We have jurisdiction pursuant to 28 

U.S.C. § 2253(c)(1).2

II.

Miller argues that pursuant to our decision in Simmons his 

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

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

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

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

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

exceeding one year] shall be determined in accordance with the 

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

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

defendant’s prior conviction for which he could not have 

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

 2 Amicus argues that this Court does not have jurisdiction 

because the district court improperly issued the COA pursuant to 

28 U.S.C. § 2253(c). We disagree. “[A] conviction for engaging 

in conduct that the law does not make criminal is a denial of 

due process” for which a COA is appropriate. Buggs v. United 

States, 153 F.3d 439, 444 (7th Cir. 1998). This is consistent 

with our grants of COAs in cases similar to this. See, e.g., 

United States v. Thomas, 627 F.3d 534, 535 (4th Cir. 2010) 

(noting that we “granted a certificate of appealability to 

consider the issue of whether Watson [holding that a person does 

not use a firearm under 18 U.S.C. § 924(c)(1)(A) when he 

receives it in trade for drugs] announced a new rule of law that 

applies retroactively to cases on collateral review”). Thus, we 

decline to review the COA and proceed on the merits. 
9

mandatory Structured Sentencing Act, N.C. Gen. Stat. § 15A1340.17, was not “punishable” by more than one year in prison 

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

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

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

North Carolina offense did not matter; if a hypothetical 

defendant charged with the same crime could have received more 

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

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

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

prohibited from possessing a firearm unless he could have 

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

his prior convictions. The parties and Amicus agree that 

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

Amicus argues that the rule is not retroactively applicable. 

A petitioner who collaterally attacks his conviction must 

establish that the change applies retroactively. Bousley v. 

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

Simmons should be applied retroactively because the rule 

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

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

within an exception to the general rule, new constitutional 

rules of criminal procedure will not be applicable to those 
10

cases which have become final before the new rules are 

announced.” Id. at 310. 

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

First, he contends that Teague applies only to new 

constitutional rules and Simmons involved statutory 

interpretation. We have already rejected this argument. In 

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

squarely held that Teague is applicable to cases of statutory 

interpretation. This holding has not been placed in doubt 

because the Supreme Court has reaffirmed in Schriro v. 

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

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

includes decisions that narrow the scope of a criminal statute 

by interpreting its terms, as well as constitutional 

determinations that place particular conduct or persons covered 

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

52 (citation omitted). 

Next, Miller argues that a Teague exception applies because 

Simmons announced a new substantive rather than procedural rule. 

Substantive rules apply retroactively because there is “a 

significant risk that a defendant stands convicted of ‘an act 

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

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

Bousley, 523 U.S. at 620). A new rule is substantive “if it 
11

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

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

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

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

make criminal, but merely raise the possibility that someone 

convicted with use of the invalidated procedure might have been 

acquitted otherwise.” Id. at 352. 

The Simmons decision changed the way this Court determines 

whether prior convictions for certain lower-level North Carolina 

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

Court applied Carachuri to create a new substantive rule. 

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

defendant was exposed to given his own criminal history at the 

time he was sentenced and any aggravating factors that were 

actually alleged against him. For defendants convicted of 

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

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

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

which they could not have received sentences of more than one 

year in prison, Simmons also makes clear that those felony 

convictions do not qualify as predicate felonies for purposes of 

federal law, and those defendants are actually innocent of the 

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

this Court relied on Carachuri in reaching its decision in 
12

Simmons does not mean that Carachuri itself announced a new rule 

of substantive criminal law, only that this Court applied 

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

implicitly recognized that some extension of logic was 

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

Court’s rationale in Harp, rather than recognizing that 

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

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

that it does not reach defendants whose prior convictions could 

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

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

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

rule that is retroactively applicable.

Comparing the Simmons decision to other decisions that have 

announced a substantive rule makes clear that Simmons functioned 

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

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

Court rejected the previous construction of the use of a 

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

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

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

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

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

decision narrowed the scope of “use” to mean “active employment” 
13

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

Bousley that Bailey announced a new substantive rule that was 

retroactively applicable to cases on collateral review. 

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

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

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

firearm in violation of that statute when he receives it in 

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

Court considered the substantive scope of a criminal statute and 

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

that statute as it had previously been construed.

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

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

that Carachuri announced a procedural rule that was not 

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

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

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

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

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

get around the statute-of-limitations problem. Section 

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

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

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

been . . . made retroactively applicable to cases on collateral 
14

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

Carachuri was retroactive to decide if the motion filed by 

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

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

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

simply recognized that the recidivist nature of a prior 

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

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

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

procedure was followed in obtaining a prior conviction; it does 

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

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

defendant to punishment that the law cannot impose upon him. 

However, Powell does not necessarily mean that Simmons did not 

announce a substantive rule. Although the Court took note of 

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

to consider—whether Simmons announced a new substantive rule. 

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

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

by a retroactive Supreme Court decision. 

In fact, Simmons did announce a substantive rule when it 

applied Carachuri’s principles and then narrowed the class of 

offenders and range of conduct that can be subject to 

punishment. This additional application and analysis 
15

distinguishes Simmons from Carachuri. In sum, even though 

Powell determined that Carachuri is a procedural rule that is 

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

Carachuri, did not announce a substantive rule that is 

retroactive.

III.

In conclusion, because Simmons announced a new substantive 

rule that is retroactive on collateral review, we vacate 

Miller’s conviction and remand with instructions to the district 

court to grant his petition. 

VACATED AND REMANDED
16

KING, Circuit Judge, concurring:

I write separately to reiterate my view that the Supreme 

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

(2010), is retroactively applicable to cases on collateral 

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

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

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

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

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

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

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

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

applicability. I unequivocally agree with my fine colleagues 

that it does.