UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 15-4456

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

EDDIE LEE SWEENEY, a/k/a Eddie Lee Sweeney Jefferson,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Catherine C. Eagles, District Judge. (1:14-cr-00412-CCE-2)

Submitted: December 21, 2020 Decided: January 15, 2021

Before AGEE and KEENAN, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

Louis C. Allen, Federal Public Defender, Mireille P. Clough, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Winston-Salem, North Carolina, for Appellant. Matthew G. T. Martin, United States Attorney, Kyle D. Pousson, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Eddie Lee Sweeney pled guilty, pursuant to a written plea agreement, to carrying

and using, by discharging, a firearm during and in relation to a crime of violence, in

violation of

(c)(1)(A)(iii). The underlying crimes of violence for the

§ 924(c) offense were the charges of conspiracy to commit Hobbs Act robbery and

attempted Hobbs Act robbery, in violation of

, 1951(a). The district court

sentenced Sweeney to 80 months’ imprisonment. On appeal, Sweeney contends that after

Johnson v. United States,

(2015), his § 924(c) conviction must be vacated

because its predicate offenses are not crimes of violence. The Government has moved to

dismiss this appeal as barred by the appellate waiver in Sweeney’s plea agreement.

Sweeney acknowledges that the waiver is enforceable as to the issues within its scope.

However, he argues that his claim is outside of the scope of the waiver because he is

actually innocent of violating

(c). We deny the Government’s motion to

dismiss, vacate Sweeney’s conviction, and remand for further proceedings.

We review de novo whether a defendant validly waived his right to appeal. United

States v. Cohen,

(4th Cir. 2018). “Plea agreements are grounded in

contract law, and as with any contract, each party is entitled to receive the benefit of his

bargain.” United States v. Edgell,

(4th Cir. 2019) (internal quotation

marks omitted). Where, as here, the Government seeks to enforce the appeal waiver and

has not breached the plea agreement, we will enforce the waiver if it “is valid and the issue

being appealed is within the scope of the waiver.” United States v. Dillard,

(4th Cir. 2018) (internal quotation marks omitted).

2 “Generally, if a district court questions a defendant regarding the waiver of appellate

rights during the [Fed. R. Crim. P.] 11 colloquy and the record indicates that the defendant

understood the full significance of the waiver, the waiver is valid.” United States v. Tate,

, 574 n.1 (4th Cir. 2017) (internal quotation marks omitted); see United

States v. Thornsbury,

(4th Cir. 2012) (discussing the factors courts

consider). The record establishes that the district court explained the appellate waiver to

Sweeney, that he understood he was waiving his appellate rights, and that his guilty plea

was knowing and voluntary. Therefore, Sweeney’s appellate waiver is valid.

“A waiver remains valid even in light of a subsequent change in the law.” United

States v. Adams,

(4th Cir. 2016) (internal quotation marks omitted). An

appeal waiver, however, does not bar an appeal as to matters outside the scope of the

waiver. United States v. Blick,

(4th Cir. 2005). Moreover, we will

“refuse to enforce an otherwise valid waiver if to do so would result in a miscarriage of

justice.” United States v. Johnson,

(4th Cir. 2005) (internal quotation

marks omitted); see Adams,

. And “[a] proper showing of actual innocence

is sufficient to satisfy the miscarriage of justice requirement.”

(internal quotation marks

omitted).

Sweeney argues that his appeal falls outside of the scope of his appellate waiver

because he can establish actual innocence. See

(concluding that

cognizable claim of actual innocence falls outside scope of waiver). Because Sweeney did

not argue in the district court that the predicates for his § 924(c) conviction did not qualify

as crimes of violence, we review his claim for plain error. To succeed on plain error review,

3 Sweeney “must show (1) that the district court erred, (2) that the error was plain, and (3)

that the error affected his substantial rights.” See Cohen,

. As to the second

plain error prong, “[a]n error is plain if the settled law of the Supreme Court or this circuit

establishes that an error has occurred.” United States v. Carthorne,

(4th

Cir. 2013) (internal quotation marks omitted). Even if Sweeney satisfies those three plain

error requirements, this court “possess[es] discretion on whether to recognize the error”

and will not “do so unless the error seriously affects the fairness, integrity or public

reputation of judicial proceedings.” Cohen,

(internal quotation marks

omitted).

We conclude that Sweeney has made the required showing. Sweeney’s § 924(c)

conviction was predicated on conspiracy to commit Hobbs Act robbery and attempted

Hobbs Act robbery. In United States v. Davis, the Supreme Court concluded that the

residual clause in § 924(c)(3)(B) was unconstitutionally vague,

(2019), and in United States v. Simms, we held that conspiracy to commit Hobbs Act

robbery is not a crime of violence under the force clause in

(c)(3)(A).

(4th Cir.) (en banc), cert. denied,

(2019). Recently, we

held that attempted Hobbs Act robbery is not a crime of violence. United States v. Taylor,

(4th Cir. 2020). Because Sweeney’s § 924(c) conviction is not

supported by a valid predicate, he has made a proper showing of actual innocence. We

therefore decline to enforce the waiver and deny the Government’s motion to dismiss.

4 Accordingly, we vacate Sweeney’s

(c) conviction and remand for

further proceedings. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before this court and argument would

not aid the decisional process.

VACATED AND REMANDED

5