August 21, 2013 4th Circuit published opinion

Miller v United States

Miller moved to have his felon in possession conviction vacated based on 4th Circuit precedent which required prior convictions relied upon for a felon in possession conviction actually subject defendants to one year or more of incarceration based on their criminal records. The government waived its statute of limitations defense and confessed the conviction should be vacated. The trial court refused ruling the new precedent was procedural in nature and thus did not apply retroactively. The panel reversed. It held that the new rule on which convictions are felonies for purposes of the felon in possession statute was substantive, not procedural, as it recued the number of people subject to the criminal statute. As substantive rules are retroactively applied, and none of the convictions alleged by the government in the underlying prosecution were actually felonies, the panel vacated miller’s conviction. It rejected the claim that 4th Circuit precedent requires the opposite result holding that the issue in the prior case was whether United States Supreme Court precedent operated retroactively, not whether the subsequent change in 4th Circuit law on which crimes count as felonies was substantive. One judge added a concurrence arguing the Supreme Court case should be applied retroactively.

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