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`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
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`No. 15-4456
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`UNITED STATES OF AMERICA,
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`EDDIE LEE SWEENEY, a/k/a Eddie Lee Sweeney Jefferson,
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`Plaintiff - Appellee,
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`v.
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`Defendant - Appellant.
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`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)
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`Submitted: December 21, 2020
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`Decided: January 15, 2021
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`Before AGEE and KEENAN, Circuit Judges, and TRAXLER, Senior Circuit Judge.
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`Vacated and remanded by unpublished per curiam opinion.
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`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.
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`Unpublished opinions are not binding precedent in this circuit.
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`PER CURIAM:
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`Eddie Lee Sweeney pled guilty, pursuant to a written plea agreement, to carrying
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`and using, by discharging, a firearm during and in relation to a crime of violence, in
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`violation of 18 U.S.C. § 924(c)(1)(A)(iii). The underlying crimes of violence for the
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`§ 924(c) offense were the charges of conspiracy to commit Hobbs Act robbery and
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`attempted Hobbs Act robbery, in violation of 18 U.S.C. §§ 2, 1951(a). The district court
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`sentenced Sweeney to 80 months’ imprisonment. On appeal, Sweeney contends that after
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`Johnson v. United States, 576 U.S. 591 (2015), his § 924(c) conviction must be vacated
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`because its predicate offenses are not crimes of violence. The Government has moved to
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`dismiss this appeal as barred by the appellate waiver in Sweeney’s plea agreement.
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`Sweeney acknowledges that the waiver is enforceable as to the issues within its scope.
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`However, he argues that his claim is outside of the scope of the waiver because he is
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`actually innocent of violating 18 U.S.C. § 924(c). We deny the Government’s motion to
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`dismiss, vacate Sweeney’s conviction, and remand for further proceedings.
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`We review de novo whether a defendant validly waived his right to appeal. United
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`States v. Cohen, 888 F.3d 667, 678 (4th Cir. 2018). “Plea agreements are grounded in
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`contract law, and as with any contract, each party is entitled to receive the benefit of his
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`bargain.” United States v. Edgell, 914 F.3d 281, 287 (4th Cir. 2019) (internal quotation
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`marks omitted). Where, as here, the Government seeks to enforce the appeal waiver and
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`has not breached the plea agreement, we will enforce the waiver if it “is valid and the issue
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`being appealed is within the scope of the waiver.” United States v. Dillard, 891 F.3d 151,
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`156 (4th Cir. 2018) (internal quotation marks omitted).
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`“Generally, if a district court questions a defendant regarding the waiver of appellate
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`rights during the [Fed. R. Crim. P.] 11 colloquy and the record indicates that the defendant
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`understood the full significance of the waiver, the waiver is valid.” United States v. Tate,
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`845 F.3d 571, 574 n.1 (4th Cir. 2017) (internal quotation marks omitted); see United
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`States v. Thornsbury, 670 F.3d 532, 537 (4th Cir. 2012) (discussing the factors courts
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`consider). The record establishes that the district court explained the appellate waiver to
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`Sweeney, that he understood he was waiving his appellate rights, and that his guilty plea
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`was knowing and voluntary. Therefore, Sweeney’s appellate waiver is valid.
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`“A waiver remains valid even in light of a subsequent change in the law.” United
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`States v. Adams, 814 F.3d 178, 182 (4th Cir. 2016) (internal quotation marks omitted). An
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`appeal waiver, however, does not bar an appeal as to matters outside the scope of the
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`waiver. United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). Moreover, we will
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`“refuse to enforce an otherwise valid waiver if to do so would result in a miscarriage of
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`justice.” United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005) (internal quotation
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`marks omitted); see Adams, 814 F.3d at 182. And “[a] proper showing of actual innocence
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`is sufficient to satisfy the miscarriage of justice requirement.” Id. (internal quotation marks
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`omitted).
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`Sweeney argues that his appeal falls outside of the scope of his appellate waiver
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`because he can establish actual innocence. See id., 814 F.3d at 182 (concluding that
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`cognizable claim of actual innocence falls outside scope of waiver). Because Sweeney did
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`not argue in the district court that the predicates for his § 924(c) conviction did not qualify
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`as crimes of violence, we review his claim for plain error. To succeed on plain error review,
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`Sweeney “must show (1) that the district court erred, (2) that the error was plain, and (3)
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`that the error affected his substantial rights.” See Cohen, 888 F.3d at 685. As to the second
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`plain error prong, “[a]n error is plain if the settled law of the Supreme Court or this circuit
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`establishes that an error has occurred.” United States v. Carthorne, 726 F.3d 503, 516 (4th
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`Cir. 2013) (internal quotation marks omitted). Even if Sweeney satisfies those three plain
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`error requirements, this court “possess[es] discretion on whether to recognize the error”
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`and will not “do so unless the error seriously affects the fairness, integrity or public
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`reputation of judicial proceedings.” Cohen, 888 F.3d at 685 (internal quotation marks
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`omitted).
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`We conclude that Sweeney has made the required showing. Sweeney’s § 924(c)
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`conviction was predicated on conspiracy to commit Hobbs Act robbery and attempted
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`Hobbs Act robbery. In United States v. Davis, the Supreme Court concluded that the
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`residual clause in § 924(c)(3)(B) was unconstitutionally vague, 139 S. Ct. 2319, 2323-24
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`(2019), and in United States v. Simms, we held that conspiracy to commit Hobbs Act
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`robbery is not a crime of violence under the force clause in 18 U.S.C. § 924(c)(3)(A). 914
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`F.3d 229, 233-34 (4th Cir.) (en banc), cert. denied, 140 S. Ct. 304 (2019). Recently, we
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`held that attempted Hobbs Act robbery is not a crime of violence. United States v. Taylor,
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`978 F.3d 73, 77-78 (4th Cir. 2020). Because Sweeney’s § 924(c) conviction is not
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`supported by a valid predicate, he has made a proper showing of actual innocence. We
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`therefore decline to enforce the waiver and deny the Government’s motion to dismiss.
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`4
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`Accordingly, we vacate Sweeney’s 18 U.S.C. § 924(c) conviction and remand for
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`further proceedings. We dispense with oral argument because the facts and legal
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`contentions are adequately presented in the materials before this court and argument would
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`not aid the decisional process.
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`VACATED AND REMANDED
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`5
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