United States v. Ramirez-Castillo , 10 F. App'x 141 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4920
NICANDRO RAMIREZ-CASTILLO,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-00-129)
Submitted: May 8, 2001
Decided: May 22, 2001
Before LUTTIG and GREGORY, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
George V. Laughrun, II, GOODMAN, CARR, NIXON,
LAUGHRUN, LEVINE & MURRAY, P.A., Charlotte, North Caro-
lina, for Appellant. Robert J. Conrad, Jr., United States Attorney, D.
Scott Broyles, Assistant United States Attorney, Charlotte, North Car-
olina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Nicandro Ramirez-Castillo appeals his conviction and sentence for
possession of a firearm after being convicted of a felony, in violation
of 18 U.S.C.A. § 922(g) (West 2000). Ramirez-Castillo moved in the
district court to dismiss the indictment, and after this motion was
denied, entered a plea of guilty, preserving his right to appeal the
denial of the motion to dismiss. Finding no error by the district court,
we affirm.
Ramirez-Castillo first argues that the district court erred in denying
his motion to dismiss the indictment. This motion was based upon the
contention that, because Ramirez-Castillo could lawfully possess the
firearms in question under North Carolina law despite his status as a
convicted felon, see N.C. Gen. Stat. § 14-415.1 (2000), prosecution
under § 922(g) was foreclosed. Ramirez-Castillo also contends that
North Carolina would have automatically restored his civil rights,
including the right to possess firearms, by the passage of time from
his most recent convictions. Ramirez-Castillo's predicate conviction,
however, occurred in California, and it is to that state's law that we
must look to determine whether Ramirez-Castillo's right to lawfully
possess firearms had been restored. See 18 U.S.C.A. § 921(a)(20);
United States v. Jones, 993 F.2d 1131, 1136 (4th Cir. 1993), aff'd sub
nom. Beecham v. United States, 511 U.S. 368, 372 (1994).
Under California law, a convicted felon's civil rights are not auto-
matically restored. Rather, the felon must satisfy a period of rehabili-
tation after discharge from custody or parole, and petition a court for
a certificate of rehabilitation. See Cal. Penal Code §§ 4852.01,
4852.03, 4852.06 (Deering 2001); United States v. Horodner, 91 F.3d
1317, 1319 n.2 (9th Cir. 1996). Ramirez-Castillo does not contend,
nor has he presented any evidence, that his civil rights have been
restored by California. His argument that North Carolina law would
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permit his possession of a firearm in his home is without merit, for
"[w]hen civil rights have not been restored, the right to possess a fire-
arm is immaterial." United States v. King, 119 F.3d 290, 292-93 (4th
Cir. 1997). The district court properly denied the motion to dismiss
the indictment.
Ramirez-Castillo also appeals the determination of his criminal his-
tory under the U.S. Sentencing Guidelines Manual § 4A1.2(a) (1998).
He argues that use of his 1990 California conviction for possession
with intent to sell cocaine, which served as the predicate offense for
his conviction under § 922(g), as a prior sentence for purposes of cal-
culating his criminal history, constitutes impermissible double count-
ing. We disagree. We have previously held that the Sentencing
Guidelines are to be applied as written, and that double counting is
permitted unless specifically prohibited. See United States v. Wil-
liams, 954 F.2d 204, 206-08 (4th Cir. 1992). The Guidelines define
a previous sentence for criminal history purposes as"any sentence
previously imposed upon adjudication of guilt, . . . for conduct not
part of the instant offense." USSG § 4A1.2(a). The conduct that was
the instant offense in this case was Ramirez-Castillo's unlawful pos-
session of firearms on May 10, 2000. Ramirez-Castillo's possession
of cocaine with intent to sell in California in 1990 was conduct "not
part of the instant offense." See United States v. Alessandroni, 982
F.2d 419, 421 (10th Cir. 1992) ("[I]t is not the conduct of committing
a prior felony that is an element of § 922(g)(1); rather, it is the status
of being a convicted felon that is an element of§ 922(g)(1)." (empha-
sis in original)). This assertion of error is without merit.
We therefore affirm Ramirez-Castillo's conviction and sentence.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the material before the court and
argument would not aid in the decisional process.
AFFIRMED
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