United States v. Moon

31 F.4th 259

UNITED STATES of America, Plaintiff – Appellee,

v.Richard Craig MOON, Defendant - Appellant.

No. 21-7209

United States Court of Appeals, Fourth Circuit.

Argued: March 8, 2022

Decided: April 11, 2022

ARGUED: Christopher Wayne Adams, ADAMS & BISCHOFF. P.C., Charleston, South Carolina, for Appellant. William Jacob Watkins, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee. ON BRIEF: Meredith D. McPhail, ADAMS & BISCHOFF. P.C., Charleston, South Carolina, for Appellant. M. Rhett DeHart, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Before WILKINSON, NIEMEYER, and QUATTLEBAUM, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Niemeyer and Judge Quattlebaum joined.

WILKINSON, Circuit Judge:

Richard Moon pleaded guilty to being a felon in possession of a firearm, and the district court applied a sentencing enhancement under the Armed Career Criminal Act, resulting in a 15-year sentence. After intervening caselaw rendered Moon ineligible for the enhancement, he was resentenced to time served. Moon subsequently petitioned the district court under 28 U.S.C. § 2513 for a certificate of innocence, which would permit him to sue the United States for damages resulting from his allegedly wrongful conviction. The district court found that Moon had failed to meet each of the three statutory requirements for a certificate of innocence. For the following reasons, we affirm.

I.

On January 14, 2005, Richard Moon was pulled over by a Fountain Inn, South Carolina police officer for ignoring a stop sign. After issuing Moon a written warning for the traffic violation, the officer asked to search Moon's car. Moon refused, falsely claiming that he had locked his keys in the car. After Moon's wife produced a set of keys, Moon consented to a search. Officers seized methamphetamine, marijuana, electronic scales, and a loaded 12-gauge shotgun, and Moon was arrested. At the time of his arrest, Moon had several prior state convictions, including marijuana possession with intent to distribute and second-degree burglary, both of which were punishable by more than a year in prison.

Moon was indicted in the District of South Carolina and charged with being a felon in possession of a firearm and with possessing methamphetamine and marijuana with intent to distribute. Moon pleaded guilty to the firearm charge, after which the government dismissed the drug charge. At sentencing, the district court concluded that Moon had three prior convictions for "violent felonies"—which Moon's counsel did not contest—and therefore imposed the 15-year mandatory minimum sentence required by 18 U.S.C. § 924(e) ’s Armed Career Criminal Act (ACCA) enhancement. Moon unsuccessfully challenged his enhanced sentence on direct appeal and in a habeas petition.

After Moon's conviction became final, the Supreme Court decided Johnson v. United States , 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), and Welch v. United States , 578 U.S. 120, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016). The Court held that one of § 924(e) ’s definitions of "violent felony"—the residual clause—was unconstitutionally vague and that this ruling would be retroactive on collateral review. Because Moon's enhanced sentence was based on the invalidated residual clause, the district court vacated Moon's § 924(e) enhancement and immediately resentenced him to time served plus ten days on the underlying felon-in-possession conviction. Moon ultimately served nine years—less than the ten-year statutory maximum for being a felon-in-possession, but more than the Sentencing Guidelines would have provided absent the § 924(e) enhancement. 18 U.S.C. § 924(a)(2).

Five years after his release, Moon petitioned the district court for a certificate of innocence under 28 U.S.C. § 2513(a), which would permit him to seek compensation for his allegedly unjust imprisonment. See United States v. Graham , 608 F.3d 164, 169 (4th Cir. 2010) (citing 28 U.S.C. § 1495 ). The district court found that Moon had failed to prove each of the requirements for a certificate under 28 U.S.C. § 2513(a). As a result, the district court denied Moon's motion for a certificate of innocence. Moon has timely appealed that denial, contending that he is indeed entitled to the certificate.

II.

Section 2513 lays out the process through which a petitioner can secure a certificate of innocence, thereby permitting a suit for damages against the United States in the Court of Federal Claims. 28 U.S.C. §§ 1495, 2513. The statute requires a petitioner who has not been pardoned to make three independent showings. Id. § 2513. First, the petitioner must demonstrate that "[h]is conviction has been reversed or set aside on the ground that he is not guilty ... or on new trial or rehearing he was found not guilty of such offense." Id. § 2513(a)(1). Second, the petitioner must either show (1) "[h]e did not commit any of the acts charged" or (2) "his acts, deeds, or omissions in connection with such charge constituted no offense against the United States, or any State, Territory or the District of Columbia." Id. § 2513(a)(2). And third, he must prove "he did not by misconduct or neglect cause or bring about his own prosecution." Id. In simple terms, a petitioner must show his conviction was reversed on the grounds of innocence, that he was in fact innocent, and that his malfeasance didn't cause his prosecution.

We review denials of a certificate for abuse of discretion. United States v. Mills , 773 F.3d 563, 566 (4th Cir. 2014). Under this standard, we must affirm the denial unless the district court's factual findings were clearly erroneous or the "refusal to certify innocence was completely capricious and without rational basis." Graham , 608 F.3d at 172. Once a district court concludes that a petitioner has met the three statutory requirements, however, the court does not possess further discretion to deny the certificate. Abu-Shawish v. United States , 898 F.3d 726, 736 (7th Cir. 2018).

Congress intended that certificates of innocence would not be easy to obtain. Section 2513 was enacted to compensate "only the truly innocent," and was not intended to open "wide the door through which the treasury may be assailed by persons erroneously convicted." Graham , 608 F.3d at 171. And because the grant of a certificate of innocence and the ensuing monetary claim against the United States involve a waiver of sovereign immunity, the requirements to secure a certificate of innocence are strictly construed. Graham , 608 F.3d at 172 ; Mills , 773 F.3d at 571. Moon has not met any of these three requirements.

A.

The first prong of § 2513 requires a petitioner seeking a certificate of innocence to prove "[h]is conviction has been reversed or set aside on the ground that he is not guilty of the offense of which he was convicted." 28 U.S.C. § 2513(a)(1). Courts must therefore determine whether a petitioner's conviction was reversed based on innocence, as opposed to "technical or procedural grounds." See Graham , 608 F.3d at 169. But unlike the typical certificate of innocence petitioner, Moon concedes that he cannot make even the minimal showing that his underlying conviction has been overturned. It therefore bears stressing that if Moon believes his felon-in-possession conviction is invalid, this is emphatically not the forum or court to litigate that issue. In Diamen v. United States , 604 F.3d 653 (D.C. Cir. 2010), the D.C. Circuit explained that the text of § 2513 does not hint at providing jurisdiction to review still-extant convictions. 604 F.3d at 657. Section 2513 requires that a conviction have been nullified through a reversal, vacatur, or pardon before a certificate can be sought. 28 U.S.C. § 2513(a)(1). Moon must obtain any such reversal through the customary path of direct appeal and collateral review, and he has not done so here.

Moon nevertheless argues that his failure to secure reversal of his felon-in-possession conviction is not fatal to his bid for a certificate of innocence. He claims that the reversal of his § 924(e) sentencing enhancement meets the statutory requirement that his conviction be reversed. However, the reversal or vacatur of a sentencing enhancement cannot meet the first prong of § 2513 because it is neither an independent "conviction" nor an "offense," as required by the statute. Id.

Unless the Sixth Amendment requires that a fact be found by a criminal jury, the choice of whether a statutory provision constitutes a standalone criminal offense or whether it is merely a sentencing enhancement belongs to Congress. Almendarez-Torres v. United States , 523 U.S. 224, 228, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). To determine which choice Congress made, we "look to the statute's language, structure, subject matter, context, and history." Id. Factors that indicate a provision constitutes an enhancement rather than an offense include (1) a focus on recidivism; (2) references to an underlying offense; and (3) a statutory title or section heading using the word "penalties." Id. at 230–34, 118 S.Ct. 1219.

The text of § 924(e) clearly demonstrates that it is an enhancement. First, the provision only applies to defendants with "three previous convictions" for "a violent felony or a serious drug offense," and is therefore sharply focused on recidivism. 18 U.S.C. § 924(e)(1). Second, the statute references and is inextricably linked to the underlying § 922(g) violation. The language "[i]n the case of a person who violates section 922(g)," renders § 924(e) meaningless without an underlying conviction, strongly suggesting it is an enhancement. Id. Finally, Congress explicitly entitled § 924 "[p]enalties." Id. § 924. While § 924 does contain some standalone offenses, see, e.g., id. § 924(c), the text as a whole makes clear that § 924(e) is an enhancement rather than an offense.

Any attempt to transform § 924(e)...