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Fourth Circuit Announces Rehaif Applies to All § 922(g) Firearms-Possession Offenses and Applies Retroactively to Initial § 2255 Motions

by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit held that the holding of Rehaif v. United States, 139 S. Ct. 2191 (2019), applies retroactively to cases on collateral review and applies to convictions for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

In 2015, Thomas Bradford Waters was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At his trial, the U.S. District Court for the District of South Carolina instructed the jury that “it is not necessary for the government to prove that the defendant knew he was a convicted felon,” despite the fact § 922(g)(1) contains a mens rea requirement of “knowingly” violating it. Waters was sentenced to 10 years’ imprisonment, and his conviction was affirmed on appeal.

In 2019, Waters filed a pro se 28 U.S.C. § 2255 motion to vacate his conviction. While his motion was pending, the U.S. Supreme Court decided Rehaif, holding “that in a prosecution under 18 U.S.C. § 922(g) and 924(a)(2), the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.” Waters subsequently moved for appointment of counsel to assist him in preparing a Rehaif claim.

The District Court denied both the motion for appointment of counsel and the § 2255 motion in its entirety, reasoning that Rehaif’s holding is inapplicable because Waters had been convicted of being a felon in possession of a firearm under § 922(g)(1); whereas, the defendant in Rehaif had been convicted of possession of a firearm by an unlawful alien under § 922(g)(5). The District Court also found “no indication” that the Supreme Court made Rehaif retroactively applicable on collateral review. Waters appealed.

The Court observed that in Greer v. United States, 141 S. Ct. 2090 (2021), the Supreme Court made it clear that “Rehaif’s knowledge-of prohibited-status mens rea requirement applies to all firearms-possession offenses under 18 U.S.C. § 922(g).” The Greer Court explained that in “felon-in-possession cases after Rehaif, the Government must prove not only that the defendant knew he possessed a firearm, but also that he knew he was a felon when he possessed the firearm.” In light of Greer, the District Court erred in ruling that Rehaif is inapplicable to felon-in-possession convictions under § 922(g)(1), the Court held.

The Court also held that the District Court erred in concluding that Rehaif does not apply retroactively to initial § 2255 motions. It observed “[w]hether a new rule announced by the Supreme Court applies retroactively depends on whether the rule is substantive or procedural. ‘[N]ew procedural rules do not apply retroactively on federal collateral review’ because they ‘alter only the manner of determining the defendant’s culpability.’” Edwards v. Vannoy, 141 S. Ct. 1547 (2021) (overruling the “watershed-rules-of-criminal-procedure” exception of Teague v. Lane, 489 U.S. 288 (1989)).

In contrast, new substantive rules do apply retroactively, the Court stated. “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.” Schriro v. Summerlin, 542 U.S. 348 (2004). “Generally, applying rules that were ‘not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system.’” Teague. “But retroactive application of substantive rules is justified because ‘they necessarily carry 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.’” Summerlin.

The Court concluded that Rehaif announced a new substantive rule that applies retroactively on collateral review because Rehaif “narrowed the scope of a criminal statute” by requiring the Government to prove that a defendant knew “he belonged to the relevant category of persons barred from possessing a firearm” which “altered the range of conduct or the class of persons that the law punishes” by exempting from punishment persons who unlawfully possessed a firearm but did not know they belonged to the class prohibited from doing so. Thus, the Court held Rehaif applies retroactively to initial § 2255 motions and that the District Court erred in denying Waters’ motions.

Accordingly, the Court vacated the District Court’s order denying Waters’ motion and remanded for further proceedings consistent with its opinion. See: United States v. Waters, 64 F.4th 199 (4th Cir. 2023). 

Editor’s note: In holding that Rehaif applies retroactively on collateral review, the Fourth Circuit joins the Fifth, Sixth, and Eleventh Circuits that have all reached the same conclusion. See Seabrooks v. United States, 32 F.4th 1375 (11th Cir. 2022) (per curiam); United States v. Kelley, 40 F.4th 250 (5th Cir. 2022); Baker v. United States, 848 F. App’x 188 (6th Cir. 2021). 



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