JAMES RAY ERWIN, PETITIONER V. UNITED STATES OF AMERICA No. 90-5048 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Seventh Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-5a) is reported at 902 F.2d 510. The opinion of the district court (Pet. App. 6a-21a) is reported at 723 F. Supp. 1285. JURISDICTION The judgment of the court of appeals was entered May 7, 1990. The petition for a writ of certiorari was filed July 6, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner was a previously convicted felon under 18 U.S.C. 921(a)(20) and 922(g)(1). STATEMENT 1. Petitioner was indicted in the Central District of Illinois on one count of possession of a firearm by a previously convicted felon, in violation of 18 U.S.C. 922(g)(1). The indictment alleged that petitioner had four previous convictions for burglary under Illinois law and one previous state conviction for aggravated battery, thus subjecting him to an enhanced sentence of a minimum term of 15 years' imprisonment under 18 U.S.C. 924(e)(1) (Supp. V 1987). /1/ Pet. App. 8a. At the close of the government's case, petitioner filed a motion for a judgment of acquittal, contending that he was not a previously convicted felon for purposes of 18 U.S.C. 921(a)(20) and 922(g)(1). Petitioner pointed out that since he had completed serving all of his state sentences, Illinois law automatically restored his "civil rights" to hold public office and to vote, and "all license rights and privileges * * * which have been revoked or suspended because of a conviction of an offense." Ill. Rev. Stat. ch. 38, Paragraph 1005-5-5(a) and (d). He therefore argued that he did not stand convicted of a crime for purposes of Section 922(g)(1) because he had "had his civil rights restored" within the meaning of Section 922(a)(20). Pet. App. 3a-4a, 7a-8a. /2/ The district court denied that motion and the jury later convicted petitioner. Pet. App. 8a. 2. Petitioner thereafter renewed his motion. After holding a post-trial hearing, the district court again denied petitioner's motion. Pet. App. 6a-21a. As the court explained: In light of the fact that by virtue of Paragraph 24-1.1 Illinois has forbidden (petitioner) to possess firearms in spite of the restoration of civil rights accorded him by Paragraph 1005-5-5 (even (petitioner) concedes that Illinois could have prosecuted him for possessing his handgun had it chosen to, notwithstanding Paragraph 1005-5-5), we wholly agree with the Government's contention that Congress' purpose in amending Section 921(a)(20) would be "turned on its head" by finding in (petitioner's) favor. Pet. App. 18a. The court reviewed the language of Section 921(a)(20) and determined that when "Congress declared that a conviction is not a conviction if civil rights had been restored, the meaning of 'civil rights' must be determined according to federal law." Pet. App. 18a. "Whatever else Congress may have meant by 'civil rights,'" the court concluded, "it is clear that it meant the rights to possess firearms." Ibid. The court pointed out that the "federal firearm laws are meant to protect society from undesirables who would misuse guns," and thus the "class of persons federally disqualified * * * include(s) only those also disqualified by the states." Id. at 19a. The court therefore held that "the words 'or has had civil rights restored' in Section 921(a)(20) requires, at the least, that the Defendant be restored by the relevant state to the right to possess firearms." Pet. App. 19a. Under Illinois law, however, as petitioner conceded, he may not possess guns. Id. at 19a-21a. Since Illinois law "has not restored (the) right (to possess firearms) to (petitioner)," the court concluded that "his 'civil rights' have not been restored within the meaning of Section 921(a)(20)." Pet. App. 21a. The court later sentenced petitioner to an enhanced term of 25 years' imprisonment under 18 U.S.C. 924(e)(1). Pet. App. 2a. 3. The court of appeals affirmed. Pet. App. 1a-5a. The court concluded that "(w)hen state law deems a person convicted, that is dispositive for federal purposes under the first sentence of Section 921(a)(20)." Pet. App. 4a. Here, petitioner conceded that "Illinois still considers him (a convicted felon)," ibid., since state law "does not restore the right to own or carry guns," id. at 3a (citing Ill. Rev. Stat. ch. 38, Paragraph 24-1.1). Accordingly, the court held that petitioner stood convicted of a crime for purposes of Section 921(a)(20). Pet. App. 5a. The court rejected petitioner's argument that the second sentence of Section 921(a)(20) "means that he is not a convicted felon for federal purposes even though Illinois still considers him one." Pet. App. 4a. The court determined that that sentence "does not require a federal court to disregard the state's definition of a conviction just because the state has restored any one civil right." Ibid. In the court's view, the "notice rule (in Section 921(a)(20)) is designed not for statutes such as (Ill. Rev. Sat. ch. 38, Paragraph 1005-5-5) that return the right to vote * * * but for communications that seem to have broader import." Pet. App. 4a. In other words, if "the governor issues a pardon that by virtue of state law does not restore the right to carry guns, then unless the state tells the felon this the federal government will not treat him as convicted." Ibid. By contrast, "(w)hen * * * the state sends no document granting pardon or restoring rights, there is no potential for deception, and the question becomes whether the particular civil right to carry guns has been restored." Id. at 5a. /3/ ARGUMENT 1. Petitioner contends (Pet. 11-17) that he is not a previously convicted felon for purposes of 18 U.S.C. 921(a)(20) and 922(g)(1). Petitioner points out that Illinois law has automatically restored his "civil rights." Ill. Rev. Stat. ch. 38, Paragraph 1005-5-5(a) and (d). He therefore argues that he does not stand convicted of a crime for purposes of Section 922(g)(1) because he has "had his civil rights restored" within the meaning of Section 922(a)(20). Section 922(a)(20) provides in pertinent part that "(a)ny conviction * * * for which a person * * * has had civil rights restored shall not be considered a conviction * * *, unless such * * * restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms." 18 U.S.C. 922(a)(20). Under Illinois law, petitioner may now exercise the civil rights he surrendered as a result of his criminal convictions. See Ill. Rev. Stat. ch. 38, Paragraph 1005-5-5(a) and (d). At the same time, however, Illinois law expressly bars petitioner, a previously convicted felon, from possessing a firearm. See Ill. Rev. Stat. ch. 38, Paragraph 24-1.1. Accordingly, under the plain terms of Section 922(a)(20), the restoration of petitioner's civil rights accomplished by state law "expressly provides that (he) may not * * * possess * * * firearms." See, e.g., United States v. Cassidy, 899 F.2d 543, 546-550 (6th Cir. 1990). /4/ 2. Petitioner also contends (Pet. 18-19) that the court of appeals' decision conflicts with United States v. Kolter, 849 F.2d 541 (11th Cir. 1988). In Kolter, the court of appeals held that Section 921(a)(20), which Congress had enacted between the time of the defendant's indictment and trial, applied to the defendant's case. 849 F.2d at 543-545. Having found that "the State Board of Pardons and Paroles (had) unqualifiedly restored all the civil and political rights (the defendant) has lost as a result of (his) burglary offense," id. at 542-543, the court of appeals concluded that he was not a convicted felon within the meaning of Section 921(a)(20). Since the Eleventh Circuit did not find that state law disabled the defendant from possessing firearms, and therefore had no occasion to consider the effect of such a provision, /5/ its decision is consistent with the decision below. /6/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General RICHARD A. FRIEDMAN Attorney AUGUST 1990 /1/ The sentence enhancement provision of 18 U.S.C. 924(e)(1) applies to previously convicted felons who possess or receive a firearm in violation of 18 U.S.C. 922(g). Title 18, United States Code, Section 924(e)(1), provides in pertinent part: In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years * * *. Title 18, United States Code, Section 922(g)(1), refers to any "convict(ion) in any court of a crime punishable by imprisonment for a term exceeding one year." Title 18, United States Code, Section 921(a)(20), further provides in pertinent part: What constitutes a conviction of (a crime punishable by imprisonment for a term exceeding one year) shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had his civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms. /2/ Petitioner acknowledged that, despite the restoration of his civil rights, state law continued to disable him from possessing any firearm. See Ill. Rev. Stat. ch. 38, Paragraph 24-1.1 (making it a crime for a previously convicted felon to possess a firearm unless he obtains administrative relief). He argued, however, that such a disability did not qualify as an "expressly" provided reservation within the meaning of Section 922(a)(20). /3/ The court distinguished United States v. Kolter, 849 F.2d 541 (11th Cir. 1988) on the ground that that case "dealt with a pardon that restored all civil rights, including an entitlement to possess weapons." Pet. App. 5a. The court also pointed out that Ill. Rev. Stat. ch. 38, Paragraph 24-1.1, is the sort of "express" provision regarding the firearms disability contemplated by the second sentence of Section 921(a)(20). The fact that that state law provision was codified separately from the civil rights restoration provision, Ill. Rev. Stat. ch. 38, Paragraph 1005-5-5, was "unimportant," in the court of appeals' view, since the "state's law is 'express' notice of its contents." Pet. App. 5a. /4/ Petitioner seeks to avoid this straightforward application of the statute by asserting that although Paragraph 24-1.1 may be "an express provision precluding firearm possession * * *, it is not contained within (Paragraph) 1005-5-5 as the federal statute specifically requires." Pet. 16. That assertion is meritless, since Section 922(a)(20) speaks of state law "restoration of civil rights," not restoration of civil rights only in particular sections of state law. Moreover, as the court of appeals determined, the fact that an express state law provision was codified separately from the civil rights restoration provision is "unimportant," since the "state's law is 'express' notice of its contents." Pet. App. 5a. /5/ For that reason, petitioner's assertion (Pet. 19) that the Eleventh Circuit overlooked pertinent state law is beside the point. /6/ Petitioner also suggests (Pet. 12, 17-18, 19-20) that the court of appeals' decision is inconsistent with United States v. Cassidy, 899 F.2d 543, 546-550 (6th Cir. 1990), and Presley v. United States, 851 F.2d 1052 (8th Cir. 1988). In Presley, the court of appeals did not even address the issue petitioner presents here. Instead, the court held only that state law had not sufficiently restored the defendant's civil rights under Section 921(a)(20). Id. at 1053. On the other hand, in Cassidy, as in the decision below, the Sixth Circuit held that since state law -- other than that which restored the defendant's civil rights -- expressly barred him from possessing firearms, that law satisfied the proviso in Section 922(a)(20). 899 F.2d at 549-550. Accordingly, there is no pertinent disagreement between Cassidy and the decision below. To be sure, the court of appeals disagreed (Pet. App. 4a-5a) with Cassidy to the extent the latter stated that "the express restriction on firearms privileges (need not) be contained * * * in the certificate * * * which restores civil rights." Id. at 545 n.5. That disagreement, however, is immaterial -- as the court of appeals itself recognized (Pet. App. 5a) -- since this case does not involve circumstances where the state affirmatively notified the defendant of the restoration of his rights.