United States v. Curtis O'Neal , 180 F.3d 115 ( 1999 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4188
CURTIS LEE O'NEAL,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, District Judge.
(CR-93-40-V)
Argued: April 9, 1999
Decided: June 2, 1999
Before LUTTIG and WILLIAMS, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
_________________________________________________________________
Affirmed by published opinion. Judge Luttig wrote the opinion, in
which Judge Williams and Senior Judge Butzner joined.
_________________________________________________________________
COUNSEL
ARGUED: Harold Johnson Bender, LAW OFFICE OF HAROLD J.
BENDER, Charlotte, North Carolina, for Appellant. Brian Lee Whis-
ler, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON
BRIEF: Mark T. Calloway, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.
OPINION
LUTTIG, Circuit Judge:
Curtis Lee O'Neal appeals from his federal conviction for unlawful
possession of a firearm and his enhanced sentence as an armed career
criminal. He contends that the district court should have granted him
a new trial because of jury misconduct and that there were not three
predicate convictions to support his enhanced sentence. For the rea-
sons that follow, we affirm.
I.
In April 1995, a jury in the Western District of North Carolina con-
victed O'Neal of one count of possessing a firearm in violation of 18
U.S.C. § 922(g)(1), which outlaws possession of a firearm, in or
affecting interstate commerce, by any person "who has been con-
victed in any court, of a crime punishable by imprisonment for a term
exceeding one year." The district court denied O'Neal's motion for a
new trial on this charge in June 1995. The predicate conviction on
which the government relied to trigger section 922(g)(1)'s prohibition
was O'Neal's conviction in April 1988 in North Carolina state court
for assault with a deadly weapon with intent to kill and inflicting seri-
ous injury. At sentencing on O'Neal's firearm possession conviction,
the district court, adopting the presentence report ("PSR") "for all pur-
poses of this sentencing," agreed with the PSR's conclusion that
O'Neal had at least three previous convictions (including the 1988
conviction) for violent felonies or serious drug offenses, see 18
U.S.C. § 924(e), and was therefore an armed career criminal subject
to an enhanced sentence under section 4B1.4 of the sentencing guide-
lines. The court ultimately sentenced him to 262 months, the bottom
of his guideline range.
O'Neal appeals, raising two arguments. He first argues that the dis-
trict court abused its discretion by denying his motion for a new trial
based upon jury misconduct. Second, he challenges the propriety of
using two of the predicate convictions on which the government relies
for his status as an armed career criminal -- his North Carolina state
convictions in 1975 and 1977.
2
II.
We need not dwell on O'Neal's claim that the district court abused
its discretion in denying his motion for a new trial on grounds of jury
misconduct, because this claim is meritless. Immediately after the
jury rendered its verdict, the foreman and another juror informed the
court and counsel that some jurors had been concerned to see O'Neal
taking notes during jury selection, and that those jurors had feared
that he would use the recorded information to retaliate against them.
Because of this concern expressed by members of the jury, O'Neal
moved for a mistrial.
The district court denied the motion for three reasons. First, the
motion was untimely, having been filed over two months after the
date of the verdict. See Fed. R. Crim. P. 33 (generally imposing
seven-day time limit on motion for new trial). Second, given the over-
whelming evidence of O'Neal's guilt, the court did not believe that
the jurors' fears affected their verdict. Third, the court held that it
could not apply Rule 33's longer period for bringing motions based
on newly discovered evidence, because there was no such evidence.
Rather, the district court reasoned, O'Neal possessed all of the evi-
dence to support his motion "within ten minutes of the jury's verdict
being returned." We see no abuse of discretion in denying O'Neal's
motion on such reasoning, and certainly no "clear abuse." United
States v. Dorsey, 45 F.3d 809, 817 (4th Cir. 1995).
III.
O'Neal raises two challenges to his enhanced sentence as an armed
career criminal under 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4. He
first argues that when, in 1983, North Carolina discharged his 1975
and 1977 convictions (by ending his parole), it applied the law in
effect when he committed those offenses, pursuant to which it imme-
diately restored his right to possess firearms. If the state did proceed
as O'Neal suggests, the 1975 and 1977 convictions cannot, for the
reasons discussed below, be used as predicate convictions for treating
him as an armed career criminal under section 924(e), and, as a conse-
quence, there are not three predicate convictions to support O'Neal's
enhanced sentence. On the other hand, if, in 1983, North Carolina
instead applied the law in effect in 1983, O'Neal could not then pos-
3
sess firearms, and these two convictions are therefore valid predi-
cates. O'Neal argues, however, that if we conclude that North
Carolina did in fact apply the law in effect in 1983, application of that
law violated the Ex Post Facto Clause. U.S. Const., Art. I, § 10.
Finally, as his second challenge to his status as an armed career crimi-
nal, O'Neal argues that the 1977 conviction cannot be a predicate
conviction because he lacked notice that it might be so used. We
reject each of these arguments.
A.
Section 4B1.4 of the sentencing guidelines imposes an enhanced
sentence on anyone who is an armed career criminal under 18 U.S.C.
§ 924(e)(1). Section 924(e)(1) applies to anyone "who violates section
922(g) of [Title 18] and has three previous convictions by any court
referred to in section 922(g)(1) of this title for a violent felony or seri-
ous drug offense, or both . . . ." As we explained in United States v.
Clark, 993 F.2d 402, 403 (4th Cir. 1993), this language requires,
among other things, that the three predicate convictions be "of the
type referred to in § 922(g)(1)." Section 922(g)(1) applies to convic-
tions for crimes "punishable by imprisonment for a term exceeding
one year." There is, however, an important exception:
Any conviction which has been expunged, or set aside or for
which a person has been pardoned or has had civil rights
restored shall not be considered a conviction for purposes of
this chapter, unless such pardon, expungement, or restora-
tion of civil rights expressly provides that the person may
not ship, transport, possess, or receive firearms.
18 U.S.C. § 921(a)(20). In determining whether a "restoration of civil
rights expressly provides that the person may not . . . possess . . . fire-
arms," we look to the law of the jurisdiction of conviction, see id.
(here, the State of North Carolina), and consider the jurisdiction's
entire body of law, not merely, for example, the jurisdiction's certifi-
cate of restoration of rights, received upon discharge of a conviction.
McLean v. United States, 904 F.2d 216, 218 (4th Cir. 1990). Thus, by
the interrelation of these three statutory provisions, sections
921(a)(20), 922(g)(1), and 924(e), a previous conviction may not
serve as a predicate for application of section 924(e) if the jurisdiction
4
of conviction has restored to the defendant the civil rights, including
the right to possess firearms, that it stripped from him upon his con-
viction.
O'Neal has four previous convictions that might serve as predicate
convictions under section 924(e). The first is the 1988 conviction.
O'Neal does not challenge its use as a predicate conviction. The sec-
ond is a conviction in August 1983 in South Carolina for trafficking
in marijuana. The government, however, no longer seriously contends
that this conviction is a valid predicate, but rather admits that South
Carolina fully restored O'Neal's civil rights when it discharged this
conviction in 1987. Third, in June 1977, O'Neal was convicted in
North Carolina for a felony larceny that occurred in March 1975.1
North Carolina discharged this conviction in May 1983. Finally, in
August 1975, O'Neal was convicted in North Carolina for breaking
and entering, felony larceny, and safecracking. North Carolina dis-
charged this conviction in May 1983, the same day as the 1977 con-
viction.
In evaluating the validity of the 1975 and 1977 convictions as pred-
icate convictions under section 924(e), it is necessary to understand
how North Carolina's Felony Firearms Act changed from its incep-
tion through 1983. The original version, enacted in 1971, outlawed
possession of a firearm by any person convicted of a crime punishable
by imprisonment for two or more years, N.C. Gen. Stat. § 14-
415.1(a); section 14-415.2, however, exempted those whose civil
rights had been restored.2 Other laws then in effect generally restored
a felon's civil rights two years after discharge of his conviction. See
State v. Currie, 202 S.E.2d 153, 154-55 (N.C. 1974). In 1973, North
Carolina amended its laws to restore civil rights immediately upon
_________________________________________________________________
1 In his pro se supplemental brief, O'Neal, disagreeing with the PSR,
the government, and his own counsel's reply brief, claims that this con-
viction actually occurred in August 1975, with June 1977 merely being
the date of sentencing. We need not resolve this question, however,
because, for reasons discussed below, whether the conviction occurred in
1975 or 1977 is irrelevant to its validity as a predicate under section
924(e). The key date is, instead, when the conviction was discharged.
2 1971 N.C. Sess. Laws, ch. 954,§ 1.
5
discharge of a conviction,3 but it did not then amend section 14-415.2.
The effect was to restore a felon's right to possess firearms immedi-
ately upon discharge of his conviction. See 202 S.E.2d at 155-56. As
we have explained, "[w]hen it became apparent that this would make
virtually all felons exempt from the Firearms Act, the General Assem-
bly repealed" section 14-415.2. McLean, 904 F.2d at 218-19 (citation
omitted). At the same time, in 1975, the state legislature amended sec-
tion 14-415.1 to limit the ban on possession of a firearm to five years
from the date of a conviction's discharge.4 See 904 F.2d at 218. These
revisions took effect in October 1975, after O'Neal had committed the
offenses that led to his 1975 and 1977 convictions, and, except for
some minor changes not relevant here, they remained in effect in
1983, when North Carolina discharged those convictions.5
The propriety of treating O'Neal as an armed career criminal under
section 924(e) thus turns entirely on whether, in 1983, he was able to
take advantage of the (inadvertently) lenient North Carolina law in
effect from 1973 to 1975 or rather was subject to the five-year waiting
period enacted in 1975 and in effect in 1983. If the former, he
regained his right to possess firearms in May 1983, and neither the
1975 nor 1977 conviction may count as a predicate conviction. There
would then be only one valid predicate conviction under section
924(e) -- the 1988 conviction -- and the district court would there-
fore have erred by enhancing O'Neal's sentence. If the latter, how-
ever, O'Neal's right to possess firearms in North Carolina was not
restored until May 1988, five years after discharge. But this was at
least a month after his 1988 conviction, which once again deprived
him of the right to possess firearms, and that disability continued until
at least June 1997, well after O'Neal's conviction in this case. Thus,
if the five-year waiting period applied to O'Neal's 1975 and 1977
convictions, North Carolina never effectively restored his right to pos-
sess firearms following those convictions, and they both are valid
_________________________________________________________________
3 1973 N.C. Sess. Laws, ch. 251, codified at N.C. Gen. Stat. § 13-1 et
seq.
4 1975 N.C. Sess. Laws, ch. 870.
5 In December 1995, North Carolina again amended section 14-415.1.
See N.C. Gen. Stat. § 14-415.1(a) (Michie 1994 & Supp. 1995) and
accompanying historical notes. These changes are not relevant to this
case.
6
predicate convictions under section 924(e). See United States v.
Clark, 993 F.2d 402, 405 (4th Cir. 1993) (looking to whether, follow-
ing a conviction, the defendant ever actually had the right to possess
firearms in the state of conviction, rather than analyzing each convic-
tion in isolation). In conjunction with the 1988 conviction, O'Neal
then would have three predicate convictions under section 924(e), and
the district court would have been correct to sentence him as an armed
career criminal.
Turning first to the question of which version of the Felony Fire-
arms Act North Carolina actually applied to O'Neal in 1983, we con-
clude that it applied the Act in effect in 1983. North Carolina, in
determining the right to possess firearms upon discharge from a con-
viction, does not, as O'Neal urges, apply the law in effect on the date
of the offense or conviction, but rather the law in effect on the date
of discharge. See State v. Tanner, 251 S.E.2d 705 (N.C. App. 1979)
(applying post-1975 version of Felony Firearms Act to determine
right of defendant to possess firearms following discharge in 1977 of
predicate conviction from 1968); State v. Cobb, 196 S.E.2d 521 (N.C.
App. 1973) (applying original Felony Firearms Act to determine right
to possess firearms in 1972, even though predicate conviction pre-
dated its enactment; rejecting ex post facto challenge), rev'd on other
grounds, 201 S.E.2d 878 (N.C. 1974).6
Having concluded that North Carolina applied the Felony Firearms
Act as it stood in 1983, not 1975, to O'Neal's right to possess fire-
arms in 1983, we next consider his argument that in doing so North
_________________________________________________________________
6 We have no occasion to pass on any issues regarding whether North
Carolina would allow a change in its laws to strip a felon of his previ-
ously restored right to possess firearms, and if so what effect that would
have under sections 922(g)(1) and 924(e), or whether that would violate
the Ex Post Facto Clause. We need only determine what law North Caro-
lina applied in May 1983, since the Felony Firearms Act did not change
between 1983 and 1988. See generally United States v. Haynes, 961 F.2d
50, 51-52 (4th Cir. 1992) (in reversing conviction under § 922(g)(1),
invoking West Virginia's presumption against retroactivity to justify
applying state law in effect on date that defendant's civil rights (includ-
ing right to possess firearms) were restored, rather than law in effect on
date of possession, which made it a misdemeanor for a convicted felon
to carry a firearm).
7
Carolina violated the Ex Post Facto Clause. We reject this argument
because the Act does not impose "punishment."
Other circuit courts, considering similar changes to the laws of
other states in cases under sections 922(g)(1) or 924(e), appear to
have split over the ex post facto issue. See United States v. Huss, 7
F.3d 1444 (9th Cir. 1993) (rejecting ex post facto challenge),
overruled on other grounds, United States v. Sanchez-Rodriquez, 161
F.3d 556 (9th Cir. 1998) (en banc). Cf . Roehl v. United States, 977
F.2d 375 (7th Cir. 1992) (similar). But see United States v. Davis, 936
F.2d 352 (8th Cir. 1991) (finding ex post facto violation, but uphold-
ing 924(e) sentence on other ground). We have never addressed this
precise question. Cf. United States v. Herron, 38 F.3d 115 (4th Cir.
1994) (applying West Virginia law enacted in 1989 to determine right
of felon to possess firearms in 1992, where predicate conviction
occurred before 1989 but was discharged after 1989; not discussing
ex post facto issue).
The Ex Post Facto Clause bars laws that"retroactively alter the
definition of crimes or increase the punishment for criminal acts,"
Collins v. Youngblood, 497 U.S. 37, 43 (1990), only the latter of
which is relevant in this case. The Supreme Court has phrased the
second part of this rule as prohibiting laws that retroactively "in-
crease[ ] the penalty by which a crime is punishable." California
Dep't of Corrections v. Morales, 514 U.S. 499, 507 n.3 (1995). "Pun-
ishment" and "penalty" are constitutional terms of art, defined in con-
tradistinction to laws that are "civil," Kansas v. Hendricks, 521 U.S.
346, 361 (1997), or involve "regulation of a present situation,"
Flemming v. Nestor, 363 U.S. 603, 614 (1960) (quoting De Veau v.
Braisted, 363 U.S. 144, 160 (1960) (plurality opinion of Frankfurter,
J., joined by Clark, Whittaker, and Stewart, JJ.)). While laws that
retroactively increase "punishment" or impose a "penalty" violate the
Ex Post Facto Clause, retroactive civil or regulatory ones do not. See
Hendricks, 521 U.S. at 361, 370; Flemming , 363 U.S. at 613-14. See
also Collins, 497 U.S. at 41 ("[I]t has long been recognized by this
Court that the constitutional prohibition on ex post facto laws applies
only to penal statutes . . . .").
In determining whether a law imposes "punishment," the Supreme
Court has, particularly in recent cases, applied a two-part test. The
8
Court first asks whether the legislature's intent, as discerned from the
structure and design of the statute along with any declared legislative
intent, was to impose a punishment or merely to enact a civil or regu-
latory law. See Hendricks, 521 U.S. at 361; United States v. Ursery,
518 U.S. 267, 288-89 (1996); Russell v. Gregoire, 124 F.3d 1079,
1084, 1086-87 (9th Cir. 1997), cert. denied sub nom., Stearns v.
Gregoire, 118 S. Ct. 1191 (1998). See also United States v. Salerno,
481 U.S. 739, 747 (1987) ("To determine whether a restriction on lib-
erty constitutes impermissible punishment or permissible regulation,
we first look to legislative intent.").7
Second, even if the legislature did not intend to impose a punish-
ment, a law still may be said to do so if the sanction or disability that
it imposes is "so punitive in fact" that the law "may not legitimately
be viewed as civil in nature." Ursery, 518 U.S. at 288 (internal quota-
tion marks omitted). See id. at 290; Hendricks, 521 U.S. at 361. See
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7 We realize that Salerno and Ursery were not ex post facto cases, and
that the test for "punishment" is not necessarily the same in all constitu-
tional contexts, see Ursery, 518 U.S. at 285 (holding that civil forfeiture
was not "punishment" under Double Jeopardy Clause and distinguishing
cases that involved the Eighth Amendment's Excessive Fines Clause).
Salerno involved a substantive due process challenge to a law, and
Ursery involved the Double Jeopardy Clause. But from Hendricks
(which involved both the Double Jeopardy and Ex Post Facto Clauses)
and from other cases, it is apparent that the Court applies the same test
for "punishment" for at least the Ex Post Facto, Double Jeopardy, and
Bill of Attainder Clauses, and for substantive due process. See
Hendricks, 521 U.S. at 363, 366 (relying on Salerno); id. at 361-69
(treating Ex Post Facto and Double Jeopardy Clauses together for pur-
poses of determining whether law at issue imposed"punishment"). See
also Flemming, 363 U.S. at 613 (applying same test for "punishment" to
challenges under Ex Post Facto Clause, Bill of Attainder Clause, and
Sixth Amendment right to trial by jury); Kennedy v. Mendoza-Martinez,
372 U.S. 144, 168-69 (1963) (in case involving various rights under Fifth
and Sixth Amendments, referring to "the tests traditionally applied to
determine whether an Act of Congress is penal or regulatory," and citing
to ex post facto cases, among others); Russell, 124 F.3d at 1086-87 (in
ex post facto case, relying on Ursery, Hendricks, Mendoza-Martinez, and
Flemming). We therefore freely draw on Ursery, Salerno, and Mendoza-
Martinez, along with ex post facto cases such as Hendricks and
Flemming.
9
also Flemming, 363 U.S. at 616-17 (looking first to "the language and
structure" of the law, then to "the nature of the deprivation"). A defen-
dant faces a "heavy burden" in making a showing of such a punitive
effect, Hendricks, 521 U.S. at 361, and can succeed only on the
"clearest proof," id. (quoting United States v. Ward, 448 U.S. 242,
248-49 (1980)); Ursery, 518 U.S. at 289 n.3, 290.
The analysis under this latter part of the test focuses upon whether
the sanction or disability that the law imposes"may rationally be con-
nected" to the legislature's non-punitive intent, or rather "appears
excessive" in light of that intent. Salerno , 481 U.S. at 747 (internal
quotation marks omitted). See Flemming, 363 U.S. at 614 (stating test
as whether a "restriction of the individual comes about as a relevant
incident to a regulation of a present situation") (quoting De Veau, 363
U.S. at 160); Flemming, 363 U.S. at 617 (finding "rational connec-
tion" between law's disability and legislature's intent). See also
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963) (simi-
lar). If there is a rational connection, the legislature's non-punitive
intent will control. If instead the law's sanction or disability appears
excessive, then the law is "so punitive in fact" as to amount to "pun-
ishment." As the First Circuit explained in a thorough opinion reject-
ing an ex post facto challenge to the predecessor of 18 U.S.C.
§ 922(g)(1):
[I]f the past conduct which is made the test of the right to
engage in some activity in the future is not the kind of con-
duct which indicates unfitness to participate in the activity,
it will be assumed, as it must, that the purpose of the statute
is to impose an additional penalty for the past conduct. If,
however, the past conduct can reasonably be said to indicate
unfitness to engage in the future activity the assumption will
be otherwise.
Cases v. United States, 131 F.2d 916, 921 (1st Cir. 1942).
Applying this two-part test, we conclude that North Carolina, in
amending the Felony Firearms Act to deprive felons of the right to
possess firearms for five years following the discharge of their con-
victions, had a non-punitive intent, and that the deprivation the Act
imposes is consistent with that intent. The Act is merely a measured
10
public safety provision whose applicability to those previously con-
victed of felonies is eminently reasonable. Therefore, the Act does not
impose "punishment," and its application to those who committed fel-
onies before its enactment does not violate the Ex Post Facto Clause.8
With regard to the first part of the test, North Carolina has made
clear that its intent was to enact a civil disability to protect the public
from those, felons, whose possession of guns there was the most rea-
son to fear, not to impose any punishment or penalty on felons. In
Cobb, 196 S.E.2d at 524, the North Carolina Court of Appeals
rejected an Ex Post Facto Clause challenge to the initial version of
the Felony Firearms Act. In so doing, it relied entirely on Williams
v. United States, 426 F.2d 253 (9th Cir. 1970), in which the court had
upheld a "similar" law, Cobb, 196 S.E.2d at 254, against such a chal-
lenge by explaining that it was "civil rather than penal." Williams, 426
F.2d at 255. Thus, the Cobb court viewed the Felony Firearms Act as
civil. More recently, in Tanner, the North Carolina Court of Appeals
similarly explained that the purpose of the Felony Firearms Act was
"protection of the people from violence," 251 S.E.2d at 706, a purpose
that the Supreme Court has recognized as "a legitimate regulatory
goal." Salerno, 481 U.S. at 747. See Hendricks, 521 U.S. at 363;
Salerno, 481 U.S. at 748-49. The Act itself, as it stood in 1983 (the
current version is the same in this regard), is consistent with the inter-
pretation of North Carolina's courts, since it bars only the sorts of
firearm possession by felons that, because of the concealability,
power, or location of the firearm, are most likely to endanger the gen-
eral public. See N.C. Gen. Stat. § 14-415.1(a) (banning possession
only of handguns, short firearms, and weapons "of mass death and
destruction," and exempting from the ban possession of "a firearm
within [a felon's] own home or on his lawful place of business").
In the face of this "manifest intent," Hendricks, 521 U.S. at 361,
_________________________________________________________________
8 United States v. Lominac , 144 F.3d 308 (4th Cir. 1998), on which
O'Neal relies, did not present the question of whether a law imposed
"punishment" and so is not relevant to our analysis. In Lominac, we held
that a state's change in its rules governing supervised release violated the
Ex Post Facto Clause because it increased Lominac's sentence. See id.
at 313-16. There was, understandably, no argument that increasing a
prison sentence does not constitute "punishment."
11
we see no clear proof that the Act imposes a disability "so punitive,"
see id., as to negate such intent. Rather, the rational connection
between the law and its intent is undeniable. A legislature's "judg-
ment that a convicted felon . . . is among the class of persons who
should be disabled from dealing in or possessing firearms because of
potential dangerousness is rational." Lewis v. United States, 445 U.S.
55, 67 (1980) (holding that federal ban on possession of firearms by
felons applies even where predicate conviction may be subject to col-
lateral attack, and that ban has rational basis and therefore does not
deprive felons of equal protection of the laws). Such a law imposes
an "essentially civil disability." Id. As the court in Cases explained,
"[s]urely it is reasonable to conclude that one who has been convicted
of a crime of violence is the kind of a person who cannot safely be
trusted to possess and transport arms and ammunition." 131 F.2d at
921. Such persons have "demonstrated their unfitness to be entrusted
with such dangerous instrumentalities." Id . See Hendricks, 521 U.S.
at 358 ("As we have recognized, previous instances of violent behav-
ior are an important indicator of future violent tendencies." (internal
quotation marks omitted)).
Other considerations that the Supreme Court has found relevant in
determining whether a law's sanction or disability is so punitive as to
override a legislature's non-punitive intent support our conclusion
that the Felony Firearms Act does not impose punishment. See
Mendoza-Martinez, 372 U.S. at 168-69 (listing factors); Ursery, 518
U.S. at 291-92 (considering these factors); Hendricks, 521 U.S. at
361-63 (same). First, although the law does impose an "affirmative
disability," Mendoza-Martinez, 372 U.S. at 168, on felons, it is a mild
one, far less onerous than many others that the Court has upheld as
not constituting "punishment." See Lewis , 445 U.S. at 66 ("This Court
has recognized repeatedly that a legislature constitutionally may pro-
hibit a convicted felon from engaging in activities far more funda-
mental than the possession of a firearm.") (citing ex post facto cases);
Hawker v. New York, 170 U.S. 189, 195-97 (1898) (holding that ban
on practice of medicine by felons did not impose punishment and
therefore did not violate Ex Post Facto Clause). Second, Lewis sug-
gests (as does Cases) that such a disability as the Act imposes has not
historically been regarded as punishment. Third, the Act includes no
scienter requirement, and does not apply to conduct that is already
criminal, see U.S. Const., Amend. II. Finally, although the Act may
12
further the criminal-law aim of deterrence, deterrence can serve civil
purposes, Ursery, 518 U.S. at 292, and a law that deprives persons of
the ability to commit certain crimes -- here, those involving firearms
-- presupposes that for those persons the deterrence of the criminal
law may not be sufficient, and that an additional civil disability may
be necessary to protect the public. See Hendricks, 521 U.S. at 362-63.
In upholding North Carolina's Felony Firearms Act against
O'Neal's Ex Post Facto Clause challenge, we agree with the Ninth
Circuit's decision in Huss, which, prior to Ursery and Hendricks,
upheld a similar Oregon law against such a challenge in the context
of a conviction under section 922(g)(1), and did so chiefly on the
authority of Cases. See Huss, 7 F.3d at 1446-48.9 We necessarily dis-
agree with the Eighth Circuit's decision in Davis. In Davis, which,
like this case, presented a challenge to the applicability of section
924(e), the court held that the Ex Post Facto Clause required Minne-
sota to apply the law in effect at the time of conviction (which
restored the right to possess firearms upon discharge) rather than the
law in effect at the time of discharge (which imposed a ten-year wait-
ing period) to determine whether Davis could possess firearms upon
his discharge. See 936 F.2d at 356-57. We find Davis unpersuasive
chiefly for two reasons. First, the court assumed an answer to the very
question at issue -- whether the change in Davis' right to possess
firearms imposed "punishment." The court simply asserted that it did,
see id. at 356, 357 n.5, and the court's conclusion that the change vio-
lated the Ex Post Facto Clause necessarily followed, see id. at 356
("Thus, at the time of Davis's 1971 conviction, part of his punishment
_________________________________________________________________
9 The Seventh Circuit has indirectly taken the same view. In Roehl, the
court held that a Wisconsin statute that appeared to restore all of a con-
vict's civil rights upon discharge did not actually do so. As "evidence"
for this interpretation, the court pointed both to state caselaw holding that
this statute did not restore the right to hold public office and to another
state law, enacted after the defendant's predicate convictions had been
discharged, that barred all felons from possessing a gun, regardless of
when they were convicted. 977 F.2d at 377-78. The court briefly noted
that its reliance on this latter statute as evidence did not create an "ex
post facto effect," and added, "[w]e have no doubt that if Roehl had been
prosecuted for violation of [the latter statute], his earlier convictions
could have been predicates without violation of the ex post facto provi-
sion." Id. at 378.
13
was that his civil rights would be impaired only until he was dis-
charged from his conviction."). The very presence, without comment,
of "punishment" and "civil" in this sentence points to the critical issue
that the court overlooked. Second, and related, the court did not con-
sider, or even cite, any of the extensive Supreme Court caselaw on the
meaning of "punishment."10
In light of all of the foregoing, we hold that in 1983, when North
Carolina discharged O'Neal's 1975 and 1977 convictions, the Felony
Firearms Act in effect in 1983 barred him from possessing firearms
for five years. Because, before the expiration of that five-year period,
he was convicted of the 1988 offense, North Carolina never fully
restored his civil rights after his 1975 and 1977 convictions, see
Clark, 993 F.2d at 405, and they are therefore, along with the 1988
conviction, valid predicate convictions for purposes of 18 U.S.C.
§ 924(e).
B.
O'Neal raises an additional challenge to the use of his 1977 convic-
tion as a predicate under 18 U.S.C. § 924(e). He argues that this con-
viction should not count because the government did not include it in
the notice that it filed with the district court of its intent to seek an
enhanced sentence. We reject this argument because O'Neal had ade-
quate notice that the 1977 conviction was a possible predicate convic-
tion.
There is no requirement that the government list, either in the
indictment or "in some formal notice," the predicate convictions on
which it will rely for a section 924(e) enhancement. United States v.
Alvarez, 972 F.2d 1000, 1006 (9th Cir. 1992). See United States v.
Tracy, 36 F.3d 187, 198 (1st Cir. 1994). Although a defendant does
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10 The Eighth Circuit's conclusion regarding the ex post facto effect of
the change in Minnesota law also appears to have been unnecessary to
the result in Davis, as the court went on to conclude that Minnesota did
not restore Davis' right to possess firearms, because federal law at the
time of both his conviction and discharge barred him from possession,
and Minnesota had, upon restoring his civil rights, informed him of this
disability. Id. at 357. The court therefore affirmed Davis' sentence.
14
have a right to adequate notice of the government's plan to seek such
an enhancement, see United States v. Sullivan, 98 F.3d 686, 688 (1st
Cir. 1996); cf. United States v. Mobley, 40 F.3d 688, 691 (4th Cir.
1994) (referring to government "[h]aving provided proper notice" of
intent to invoke section 924(e)), and of the convictions that may sup-
port that enhancement, see United States v. Hudspeth, 42 F.3d 1015,
1024 n.17 (7th Cir. 1994) (en banc); Tracy, 36 F.3d at 198, the listing
of these convictions in the PSR is more than adequate to provide such
notice, see id.; Sullivan, 98 F.3d at 688; cf. Hudspeth, 42 F.3d at 1019
n.6 (explaining that a "certified record of conviction or a [PSR], if not
challenged, will normally satisfy" the government's burden of estab-
lishing "that a defendant has three prior felony convictions"); United
States v. Morrell, 61 F.3d 279, 279-80 (4th Cir. 1995) (affirming sen-
tence under section 924(e) where possibility of its application, and the
possible predicate offenses, were not raised until the PSR, and gov-
ernment initially objected to use of one of the three predicate convic-
tions listed in the PSR; not discussing notice).
In light of the prominence of the 1977 conviction in the PSR in this
case, and the opportunity O'Neal had (and took) to object to its use,
we conclude that he had adequate notice. The PSR explicitly relied
on the 1977 conviction as a possible predicate for subjecting O'Neal
to an enhanced sentence as an armed career criminal, and also gave
a full description of the offense. Thus, O'Neal had every reason to
object to its use, and in fact did so, both in his written objections to
the PSR, J.A. at 302 (arguing that the 1977 conviction "is not a crime
of violence" and that O'Neal had had his civil rights restored), and at
his sentencing hearing, J.A. at 261 (repeating argument that 1977 con-
viction was not a crime of violence, and adding that government had
not "filed a notice on" it).11 We therefore conclude that the 1977 con-
_________________________________________________________________
11 O'Neal's opening brief on appeal, written before the government
allegedly surprised him with the 1977 conviction, further proves his
awareness of this conviction. He wrote as follows:"[O]ne of the predi-
cate offenses for the enhanced sentence . . . was the August 28, 1975
conviction for breaking and entering, larceny and safecracking. The
criminal conduct underlying these convictions occurred on June 2, 1975
and June 18, 1975, respectively." Appellant's Br. at 10 (emphases
added). As the PSR demonstrates, June 2 was the date of arrest for the
offenses that led to the 1975 conviction (the conduct having occurred in
15
viction, along with those in 1975 and 1988, formed the three predi-
cates necessary to support applying 18 U.S.C. § 924(e) and U.S.S.G.
§ 4B1.4 to O'Neal, and we affirm his sentence.
IV.
The judgment of the district court is affirmed.
AFFIRMED
_________________________________________________________________
February), whereas June 18 was the date of arrest for the offense that led
to the 1977 conviction (the conduct having occurred in March 1975).
J.A. at 291. Thus, O'Neal is referring, albeit unclearly, to both the 1975
and 1977 convictions, which, as already noted, the PSR did clearly dis-
tinguish.
16