In re: Randolph McNeill, No. 20-159 (4th Cir. 2023)
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In 2009, a jury convicted Movant of knowingly possessing a firearm as a felon in violation of 18 U.S.C. Sections 922(g)(1) and 924(a)(2). He was sentenced to 180 months imprisonment. His direct appeal and initial application for postconviction relief under 28 U.S.C. Section 2255 were unsuccessful. Now, he moved the Fourth Circuit for authorization to file a second or successive Section 2255 application premised on the Supreme Court’s decision in Rehaif v. United States. And he argued in the alternative that if his motion is denied, he will be authorized to file a traditional Section 2241 habeas application through Section 2255(e)’s savings clause.
The Fourth Circuit denied Movant’s motion for authorization to file a second or successive Section 2255 application because Rehaif did not announce a constitutional rule. But as a consequence of our determination that he may not file a Section 2255 application, the court held that he may file a Section 2241 application under the savings clause. The court explained that it is true that, after Rehaif, possessing a firearm as a felon remains criminal under Section 922(g). But the government did not charge Movant with simply “possessing” a firearm in violation of Section 922(g). It charged him with “knowingly” doing so under Sections 922(g) and 924(a). That his conviction might have survived Rehaif if the government had charged him under Section 922(g) alone is of no moment: the government chose not to do so.
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