Argued: May 9, 2019
from the United States District Court for the District of
South Carolina, at Beaufort. Joseph F. Anderson, Jr., Senior
District Judge. (9:16-cv-03235-JFA)
Michelle Pelletier, MUNGER, TOLLES & OLSON LLP,
Washington, D.C., for Appellant.
Michael Pellettieri, OFFICE OF THE UNITED STATES ATTORNEY,
Greenbelt, Maryland, for Appellee.
Golder, MUNGER, TOLLES & OLSON LLP, Washington, D.C., for
A. Benczkowski, Assistant Attorney General, Matthew S. Miner,
Deputy Assistant Attorney, General, Criminal Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Sherri A.
Lydon, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellee.
GREGORY, Chief Judge, WYNN, and THACKER, Circuit Judges.
GREGORY, Chief Judge
Marcus Hahn appeals the final order of the district court
denying his petition for a writ of habeas corpus under 28
U.S.C. § 2241. Because Hahn's current sentence stems
from faulty arithmetic based on a now-obsolete scheme of
statutory interpretation, we conclude that Hahn's
petition meets the requirements of 28 U.S.C. § 2255(e),
the savings clause. We therefore reverse the district
court's order and remand with instructions to grant
Hahn's writ of habeas corpus.
December 31, 1999, law enforcement from various state and
federal agencies executed a search warrant for Hahn's
home near Albuquerque, New Mexico. Hahn was arrested after
law enforcement discovered and seized marijuana plants and
firearms during that search. On December 7, 2000, at the
conclusion of a jury trial in the United States District
Court for the District of New Mexico, a jury convicted Hahn
of the following four counts: (1) intentionally manufacturing
100 or more marijuana plants;(2) opening and maintaining a
place for the purpose of manufacturing, distributing, and
using marijuana; (3) possessing firearms in furtherance of
the intentional manufacturing of 100 or more marijuana
plants; and (4) possessing a firearm in
furtherance of the opening and maintaining a place for the
purpose of manufacturing, distributing, and using
marijuana. Counts III and IV are based on the same
gun collection, which includes 21 firearms.
2001, the district court sentenced Hahn to 480 months'
imprisonment for these gun and drug offenses. He received 60
months' imprisonment for Count I, a concurrent 27 months
for Count II, a consecutive 120 months for Count III, and a
consecutive 300 months for Count IV.
2002, on direct appeal to the Tenth Circuit, Hahn challenged
the legality of his sentence for his second firearm
conviction. He contended that the district court
impermissibly treated his second firearm conviction as
"second or subsequent" to his first firearm
conviction for purposes of the statute's sentencing
enhancement. Hahn I, 38 Fed.Appx. at 554. Hahn
argued that the court's approach was in error because the
underlying drug crimes were part of a "continuing
incident" and were "coterminous in space and
time." Id. The Tenth Circuit rejected this
argument, relying principally on United States
v. Sturmoski, 971 F.2d 452, 461 (10th Cir. 1992)
("[C]onsecutive sentences may be imposed for multiple
924(c) counts if the offenses underlying each 924(c) count do
not constitute a single offense for double jeopardy
purposes."). Similar to Hahn, the defendant in
Sturmoski appealed convictions for: (1) attempting
to manufacture a controlled substance; (2) maintaining a
place for manufacturing a controlled substance; and (3) two
18 U.S.C. § 924(c) convictions for facilitating the
aforementioned drug counts. Hahn I, 38 Fed.Appx. at
555. The Sturmoski court held that "Congress
intended multiple convictions under 924(c), even though the
counts involved 'the same criminal episode,' because
Congress intended the underlying offenses to be
separate." Id. After reviewing
Sturmoski, the Tenth Circuit in Hahn's case
found that "[t]he only difference between the situations
in Sturmoski and in this case is that one of
Hahn's 924(c) convictions was for possession in
furtherance of manufacture, rather than possession in
furtherance of attempt to manufacture." Id.
Given the factual and legal similarities between
Sturmoski and Hahn's case, the court found that
"Sturmoski clearly controls the outcome of this
case. Hahn's conviction for maintaining a place for
manufacture is distinct from his manufacture conviction, and
his two 924(c) convictions are also distinct."
Id. The court further ruled that "even if
possession of a firearm occurs in connection with a single
criminal episode, a second 924(c) conviction arising out of
that episode can constitute a 'second or subsequent
conviction' for sentencing purposes." Id.
The Tenth Circuit therefore affirmed Hahn's convictions
and sentence. Id.
2004, Hahn filed a motion under 28 U.S.C. § 2255 to
vacate, set aside, or correct his sentence in the United
States District Court of New Mexico. He argued that
"double jeopardy bars multiple § 924(c)(1) firearm
convictions based on multiple predicate offenses which are
factually inseparable in terms of time, space and underlying
conduct." United States v. Hahn, 191 Fed.Appx.
758, 760 (10th Cir. 2006) (citation and internal quotation
marks omitted) ("Hahn II"). Hahn also
argued that "§ 924(c)(1) contains a number of
ambiguities, requiring application of the rule of
lenity." Id. Hahn explained that he did not
previously raise these arguments because he received
ineffective assistance of counsel. The district court
dismissed the motion in 2004, concluding that Hahn's
arguments were procedurally barred and without merit.
filed a motion for reconsideration under Federal Rule of
Civil Procedure 59(e). He disputed that his double jeopardy
claim had been resolved on direct appeal and moved to amend
his § 2255 motion to add more evidence. Id. The
district court treated these motions as successive §
2255 motions and transferred them to the Tenth Circuit. Hahn
appealed this determination, and the Tenth Circuit issued a
certificate of appealability to consider Hahn's §
924(c)(1) arguments. The Tenth Circuit subsequently affirmed
the dismissal and held that: (1) Hahn forfeited his double
jeopardy claim and it was procedurally barred because he did
not raise it on direct appeal; (2) even if his double
jeopardy claim was not procedurally barred, counsel's
failure to raise it would not have constituted ineffective
assistance of counsel because Sturmoski controls and
renders Hahn's double jeopardy claim meritless; and (3)
as to the ambiguity argument, a motion to vacate could not be
used, absent an intervening change in circuit law, to raise
an argument that was resolved on direct appeal. Hahn
II, 191 Fed.Appx. at 760-61.
2015, Hahn filed a motion under Rule 60(b)(4), alleging that
he was entitled to relief because of an en banc Tenth Circuit
decision issued after the dismissal of his petition.
United States v. Rentz, 777 F.3d 1105 (10th Cir.
2015). Hahn argued that Rentz altered the
substantive law in the Tenth Circuit by establishing a new
statutory framework interpreting § 924(c). Specifically,
Hahn contended that Rentz added a
unit-of-prosecution requirement for a § 924(c)
conviction and therefore entitled him to relief denied under
Sturmoski. Unit-of-prosecution questions ask whether
the conduct at issue "constitutes one, or several,
violations of a single statutory provision."
Callanan v. United States, 364 U.S. 587, 597 (1961).
In Rentz, the Tenth Circuit addressed the issue of
whether, as a matter of statutory construction, § 924(c)
"authorizes multiple charges when everyone admits
there's only a single use, carry, or possession."
777 F.3d at 1108. After recognizing that this question was
separate from the double jeopardy inquiry, the court ruled
that each § 924(c) charge "requires an independent
use, carry, or possession." Id. at 1115. Before
Rentz, when Sturmoski was controlling law,
multiple charges under § 924(c) were permissible as long
as they did not run afoul of the Double Jeopardy Clause.
After Rentz, the Tenth Circuit, based on the
language of the statute itself, held that multiple charges
under § 924(c) based on the same conduct were not proper
even if they complied with the Double Jeopardy Clause. Thus,
Rentz found that it was improper to allow multiple
charges to arise from a single possession under the language
of the statute. Id.
district court determined that Hahn's motion should be
treated as a second or subsequent § 2255 motion-i.e., a
motion that could not be filed without precertification by
the Court of Appeals-and transferred it to the Tenth Circuit.
Hahn then filed a motion to remand before the Tenth Circuit
to allow the district court to consider the merits of his
Rule 60(b) motion or, in the alternative, for authorization
to file a second or successive § 2255 motion. The Tenth
Circuit denied both the motion to remand and Hahn's
request to file a second or successive § 2255 motion
based on a procedural impediment. Rentz was a Tenth
Circuit decision, and thus did not meet the requirements for
a second or subsequent motion.
point after 2015, correctional officials transferred Hahn to
a facility in South Carolina, where he is currently detained.
Hahn filed the instant petition under 28 U.S.C. § 2241
in the United States District Court for the District of South
Carolina. Pursuant to § 2241, federal courts have
jurisdiction over habeas corpus petitions from federal
inmates "in custody in violation of the Constitution or
laws or treaties of the United States." 28 U.S.C. §
2241(c)(3). Habeas petitions filed under this section must be
filed in the jurisdiction where the ...