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, 
2

Washington, D.C.; Sherri A. Lydon, United States Attorney, OFFICE OF THE UNITED 

STATES ATTORNEY, Columbia, South Carolina, for Appellee.
3

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.
4

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”).
5

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 
6

“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.
7

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 unitof-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 
8

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:
9

(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).
10

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 
11

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 noncriminal 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.
12

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 
13

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
14

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 factdependent 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 
15

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.
16

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
17

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 
18

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 
19

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 
20

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.
21

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), 
22

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.”).