United States v. Parson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-6642
JOHN KELLY PARSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
James A. Beaty, Jr., District Judge.
(CR-98-277, CA-00-367-1)
Argued: October 29, 2002
Decided: December 30, 2002
Before LUTTIG and MOTZ, Circuit Judges, and
Andre M. DAVIS, United States District Judge
for the District of Maryland, sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Thomas Norman Cochran, Assistant Federal Public
Defender, Greensboro, North Carolina, for Appellant. Michael Fran-
cis Joseph, Assistant United States Attorney, Greensboro, North Car-
olina, for Appellee. ON BRIEF: Anna Mills Wagoner, United States
Attorney, Greensboro, North Carolina, for Appellee.
2 UNITED STATES v. PARSON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
John Kelly Parson appeals from the district court’s denial of relief
under 28 U.S.C. § 2255. We granted a certificate of appealability,
limited to the issue of whether Parson’s conviction resulted from a
violation of the Ex Post Facto Clause, and appointed counsel to repre-
sent Parson on appeal. Having had the benefit of formal briefing and
oral argument, we affirm the order of the district court denying relief.
On June 24, 1998, Parson shot his father. Subsequently, Parson was
indicted by a federal grand jury in the Middle District of North Caro-
lina for, inter alia, a violation of 18 U.S.C. § 922(g)(1), possession of
a firearm after previously having been convicted of a crime punish-
able by imprisonment for a term exceeding one year, and 18 U.S.C.
§ 1513(a)(1)(A), retaliation against a witness. Pursuant to a plea
agreement, Parson later pled guilty to each of the above charges. Par-
son was sentenced on March 11, 1999, to imprisonment for a term of
108 months concurrent as to each count. He did not appeal from his
conviction or sentence.
Parson’s predicate felony conviction as to the § 922(g)(1) charge
was a June 28, 1988, North Carolina state court conviction for sale
of a counterfeit controlled substance, a crime punishable by a term of
imprisonment exceeding one year. The state court had sentenced Par-
son to eight months imprisonment (suspended), one year supervised
probation, two years unsupervised probation, and a $100 fine. After
Parson completed the one year of supervised probation, the State of
North Carolina issued to Parson a "final discharge" on June 27, 1989,
apparently disregarding or overlooking the existence of the period of
unsupervised probation that had been made part of the sentence by the
sentencing judge. At the time the state issued the discharge certificate,
North Carolina law provided for a limited restoration of rights effec-
tive five years after issuance of the discharge, but that statute was
UNITED STATES v. PARSON 3
effectively repealed before the events of June 24, 1998, the day on
which Parson shot his father.
In April 2000, Parson filed an amended motion to vacate sentence
under 28 U.S.C. § 2255. Specifically, Parson moved to vacate his sen-
tence on the firearms charge on the ground that his right to possess
firearms had been effectively restored under North Carolina law five
years after he received his discharge from probation on June 27, 1989,
i.e., on June 27, 1994. Consequently, according to Parson, he was not
a prohibited person at the time he possessed the firearm used to shoot
his father in June 1998. The district court denied relief. Parson noted
a timely appeal.
We have held that a "knowing, voluntary, and intelligent guilty
plea to an offense conclusively establishes the elements of the offense
and the material facts necessary to support the conviction." United
States v. Willis, 992 F.2d 489, 490 (4th Cir. 1993) (direct appeal from
guilty plea). Furthermore, "a guilty plea constitutes a waiver of all
nonjurisdictional defects, including ‘the right to contest the factual
merits of the charges.’" Id. (citations omitted); see United States v.
Broce, 488 U.S. 563, 569 (1989).
We discern no reason whatsoever why the rule of Willis should not
apply to post conviction claims asserted under § 2255. Section
922(g)(1) provides in pertinent part that it is "unlawful for any person
. . . who has been convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year . . . to . . . possess in or
affecting commerce, any firearm." 18 U.S.C. § 922(g)(1). Thus, the
essential elements of this offense are that the defendant was a prohib-
ited person at the time of the offense, that he voluntarily and inten-
tionally possessed a firearm and that the firearm traveled in interstate
commerce at some point. See United States v. Gallimore, 247 F.3d
134, 136 (4th Cir. 2001). Parson knowingly and voluntarily pled
guilty to possessing a firearm that was in or affecting commerce in
connection with shooting his father after he had previously been con-
victed of the sale of a counterfeit controlled substance in state court,
a crime punishable by a term of imprisonment exceeding one year.
Specifically, in voluntarily executing the written stipulation compris-
ing the "Factual Basis for A Guilty Plea," Parson (and his attorney)
stipulated that at the time Parson shot his father on June 24, 1998, he
4 UNITED STATES v. PARSON
could not lawfully possess a firearm because he was con-
victed of the felony of sale of a counterfeit controlled sub-
stance, a crime punishable by a term of imprisonment
exceeding one year on June 28, 1998, in Lexington, North
Carolina. North Carolina no longer restores the right of a
convicted felon to possess a handgun . . . .
(J.A., Vol. I at 20).*
Manifestly, therefore, Parson’s guilty plea constitutes an admission
of all material facts necessary to sustain his conviction on the firearms
charge under the reasoning of Willis. Parson does not challenge the
voluntary, knowing, and intelligent nature of this guilty plea. See Wil-
lis, 992 F.2d at 490-91. Accordingly, we affirm the denial of relief
under § 2255.
AFFIRMED
*Parson is simply mistaken in his contention that in establishing a fac-
tual basis for his guilty plea, "the government did not set forth any infor-
mation beyond the mere date of Parson’s predicate felony conviction."
Appellant’s Brief at 13. As quoted in text, the parties’ factual stipulation
expressly mentions the issue of restoration of civil rights. The stipulation
that "North Carolina no longer restores the right of a convicted felon to
possess a handgun" can only reasonably be interpreted in the context of
this case to mean that Parson (and his attorney) agreed that under North
Carolina law, Parson was a prohibited person. Thus, Parson’s reliance on
United States v. Essick, 935 F.2d 28 (4th Cir. 1991), is misplaced. In Ess-
ick, an appeal of a § 922(g)(1) conviction after a jury trial, we held that
the government’s proof was insufficient to sustain the jury’s guilty ver-
dict. Id. at 31. Plainly, in this case, we are not confronted with the issue
of proof of guilt beyond a reasonable doubt, but whether the government
offered a factual basis sufficient to permit the district judge to conclude
that there was adequate factual support for Parson’s guilty plea. See
United States v. Mitchell, 104 F.3d 649, 652 (4th Cir. 1997) ("In order
to comply with Rule 11(f), a district court need not replicate the trial that
the parties sought to avoid. Rather, it need only be subjectively satisfied
that there is a sufficient factual basis for a conclusion that the defendant
committed all of the elements of the offense.") (citations omitted).