NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 22-1518 __________

UNITED STATES OF AMERICA

v.

JAMES COLE, Appellant ____________________________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Crim. Action No. 2-89-cr-00322-001) District Judge: Honorable Mark A. Kearney ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) November 1, 2023 Before: KRAUSE, MATEY, and CHUNG, Circuit Judges

(Opinion filed: November 13, 2023) ___________

OPINION * ___________

PER CURIAM

James Cole is a federal inmate proceeding pro se. In 1989, he was convicted of

possessing a firearm as a felon in violation of

(g)(1) and was sentenced to

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not ten months’ imprisonment, followed by three years’ supervised release. While he was on

supervised release, he was charged with, inter alia, engaging in a continuing criminal

enterprise (CCE) in violation of

. He was convicted of that crime in 1993

and sentenced to life in prison. Meanwhile, the probation office had filed a petition to

revoke Cole’s supervised release in the § 922(g) case. In 1995, the District Court found

that he had violated the terms of his supervised release, revoked his supervised release,

and sentenced him to eighteen months’ imprisonment. The court ordered the eighteen

months to run concurrently with Cole’s life sentence in the CCE case. 1

More than two decades later, in February 2022, Cole filed a petition for a writ of

error coram nobis seeking to vacate his § 922(g) conviction on the ground that the

Government had not established that he knew he was a felon when he possessed the gun,

as now required by Rehaif v. United States,

(2019). The District

Court denied the petition, concluding that Cole was ineligible for coram nobis relief

because he was still “in custody” for the disputed § 922(g)(1) conviction. Cole appeals,

arguing that he cannot be deemed “in custody” for a concurrent sentence that he

completed years ago. Notably, the Government agrees. 2

We will vacate the District Court’s order and remand the matter for further

constitute binding precedent. 1 The District Court did not impose an additional period of supervised release. 2 We have jurisdiction under

. We review the District Court’s legal conclusions de novo and its factual findings for clear error. Ragbir v. United States, 950 2 proceedings. Coram nobis is available “to attack [federal] convictions with continuing

consequences when the petitioner is no longer ‘in custody’ for purposes of

.” United States v. Rhines,

(3d Cir. 2011) (per curiam) (quoting

United States v. Baptiste,

(3d Cir. 2000) (per curiam)). Although a

prisoner is deemed to still be in custody for the first in a series of consecutive sentences

he is still serving, see Garlotte v. Fordice,

(1995), a prisoner who is

serving the longer of two concurrent sentences, but who has completed the shorter

sentence, is not “in custody” under the shorter sentence, see Mays v. Dinwiddie,

(10th Cir. 2009); see generally Maleng v. Cook,

, 492–93 (1989)

(per curiam) (explaining that a petitioner is not “in custody” for a prior sentence merely

because it was used to enhance current sentence); Orie v. Sec’y Pa. Dep’t of Corr.,

(3d Cir. 2019) (explaining that “[w]e gauge custody for each offense

independently”).

In this case, Cole is serving a life sentence for the 1993 CCE conviction. The

§ 922(g)(1)-related sentence ran concurrently with the life sentence and is fully

discharged. Therefore, the District Court erred in concluding that “because Mr. Cole is

serving a consecutive sentence, he is still deemed to be in custody on the completed

sentence.” Dist. Ct. Order 2, n.1, ECF No. 69 (quotation marks and alterations omitted).

F.3d 54, 60 (3d Cir. 2020). 3 Accordingly, we will vacate the District Court’s order and remand for further

proceedings. We express no opinion as to whether Cole can satisfy the remaining

requirements for coram nobis relief. 3 See generally Ragbir, 950 F.3d at 62.

3 Appellant’s motion to withdraw his motion for appointment of counsel is granted and the motion for appointment of counsel is deemed withdrawn. As a result, his motion to proceed in forma pauperis is denied as unnecessary. Appellant’s “motion to correct any procedural typing error and to file a Rule 28(j) motion” is granted, and we have considered the argument in that filing. His “motion for panel adjudication” is denied. 4