United States v. Hairston , 364 F. App'x 11 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4958
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BARION LEE HAIRSTON, a/k/a Big Daddy,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Jr.,
District Judge. (1:08-cr-00060-WO-1)
Argued: December 3, 2009 Decided: February 4, 2010
Before TRAXLER, Chief Judge, NIEMEYER, Circuit Judge, and John
Preston BAILEY, Chief United States District Judge for the
Northern District of West Virginia, sitting by designation.
Affirmed by unpublished opinion. Judge Bailey wrote the
opinion, in which Chief Judge Traxler and Judge Niemeyer joined.
ARGUED: Thomas Norman Cochran, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greensboro, North Carolina, for Appellant. Terry
Michael Meinecke, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee. ON BRIEF: Anna Mills
Wagoner, United States Attorney, L. Patrick Auld, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
BAILEY, Chief District Judge:
Barion Hairston (Hairston or defendant) pleaded guilty to
being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g). At sentencing, the district court adopted the
presentence investigation report (PSR) without objection. In
particular, the PSR concluded that Hairston had at least three
prior “violent felony” convictions, 1 qualifying him as an “armed
career criminal” under the provisions of 18 U.S.C. § 924(e) and
subjecting him to an enhanced sentence under U.S.S.G. § 4B1.4.
After accepting the findings contained in the PSR, the district
court imposed an enhanced sentence of 210 months imprisonment.
For the first time, on appeal, Hairston challenges the
district court’s use of these prior convictions to form a basis
for the § 4B1.4 enhancement. 2 It is not disputed that his civil
rights had once been restored under North Carolina law. Thus,
Hairston argues, convictions for these offenses could not be
used as predicate convictions to support an enhanced sentence.
1
In particular, Hairston had the following prior felony
convictions at the time of his arrest in 2007: (1) an August
1981 conviction for breaking and entering; (2) an August 1981
conviction for attempted robbery; (3) an August 1981 conviction
for breaking and entering; (4) an August 1985 conviction for
breaking and entering; and (5) an April 2003 conviction for
habitual misdemeanor assault.
2
Because this challenge was not raised before the district
court, we review for plain error. See United States v. Olano,
507 U.S. 725 (1993).
3
We disagree, and for the reasons that follow, affirm the
sentence.
I.
Section 4B1.4 of the sentencing guidelines imposes an
enhanced sentence on anyone who is an armed career criminal as
defined by 18 U.S.C. § 924(e)(1). Section 924(e)(1) applies to
anyone who violates 18 U.S.C. § 922(g) and has three or more
previous “violent felony” convictions. 3 As we explained in
United States v. Clark, 993 F.2d 402, 403 (4th Cir. 1993),
“violent felony” convictions are those “of the type referred to
in 18 U.S.C. § 924(e)(2)(B).” Section 922(g)(1) applies to
convictions for crimes “punishable by imprisonment for a term
exceeding one year.” However, as we recognized in United States
v. O’Neal, 180 F.3d 115, 119 (4th Cir. 1999), there is “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 restoration of civil rights
expressly provides that the person may not ship,
transport, possess, or receive firearms.
18 U.S.C. § 921(a)(20) (emphasis added).
3
Section 924(e) is also triggered by three or more previous
“serious drug offense” convictions or a combination of the two.
4
In determining whether state law provides that a
defendant’s civil rights have been restored, the Court must look
“to the whole of state law.” See United States v. McLean, 904
F.2d 216, 218 (4th Cir.), cert. denied, 498 U.S. 875 (1990). We
therefore must look to North Carolina law. “This inquiry
requires an analysis of whether and to what extent [North
Carolina] ‘restores the civil rights’ of ex-felons.” United
States v. Essick, 935 F.2d 28, 30 (4th Cir. 1991) (recognizing
Congress’ intent to empower states with authority to determine
whether ex-felons would be legally permitted under federal law
to possess firearms); see also Firearm Owner’s Protection Act,
Pub.L. No. 99-308, 100 Stat. 449 (1986).
II.
North Carolina law restores to convicted felons some civil
rights upon release from prison. See N.C. Gen. Stat. § 13-1.
Upon his release in 1987, Hairston regained his “rights of
citizenship,” including his rights to vote, hold office, and
serve jury duty. N.C. Gen. Stat. §§ 163-55(2) and 9-3; see
McLean, 904 F.2d at 217 n.1. However, Hairston did not
immediately regain his right to possess a firearm upon his
release. At that time, North Carolina’s Felony Firearms Act
prohibited convicted felons from possessing firearms for five
5
years after release from prison. N.C. Gen. Stat. § 14-415.1(a)
(1975).
In 1995, North Carolina amended the Felony Firearms Act to
“replace the five-year temporary handgun disability with a
permanent ban on the possession of handguns and certain other
firearms by ex-felons[,]” regardless of the date of conviction.
United States v. Farrow, 364 F.3d 551, 554 (4th Cir.), cert.
denied, 543 U.S. 889 (2004) (emphasis added); see N.C. Gen.
Stat. § 14-415.1(a) (1995). 4
Hairston contends that the district court should have
applied the 1975 version of North Carolina’s Felony Firearms
Act, which was in effect on October 1, 1992 (the date five years
after discharge from his final 1980s conviction). In so doing,
Hairston asserts, the district court would have been forced to
find: (1) that his right to possess firearms was “restored” by
North Carolina law and (2) that pursuant to the second sentence
of section 921(a)(20) his 1980s convictions do not count as
predicate offenses under section 924(e).
4
Effective December 1, 2004, North Carolina amended the
Felony Firearms Act to expand the scope of its restriction to
include all firearms and, in so doing, retained the 1995
version’s permanent ban. N.C. Gen. Stat. § 14-415.1(a) (2004).
Finally, in 2006, the legislature modified the Felony Firearms
Act to exempt “antique firearms” from the proscription of felons
possessing firearms. 2006 N.C. Sess. Law, ch. 259, sec. 7(b).
6
In response, the Government argues that the 1995 version
should apply. In support of this contention, the Government
cites Clark, in which this Court held that “as a matter of
federal law [] a state conviction for a violent felony is not
excluded from consideration under § 924(e) by the provisions of
§ 921(a)(20) until the law of the relevant state effectively
restores to the defendant the right to possess firearms.” 993
F.2d at 405 (emphasis added). According to the Government, the
1995 amendment stripped Hairston of his previously restored
right to possess a firearm. Accordingly, Hairston’s right to
possess firearms was not effectively restored at the time of his
2007 arrest.
III.
The peculiar facts of this case form the basis of an issue
of first impression in this Circuit. This issue is two-fold:
(1) May a state retroactively strip a felon of a previously
restored right to possess firearms and (2) if so, does that act
revive a previously negated predicate conviction for purposes of
applying a sentencing enhancement under sections 922(g)(1) and
924(e)? 5 A review of the recent case law of this Court and the
5
In fact, in O’Neal, this Court explicitly noted, “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
(Continued)
7
courts of North Carolina illustrates that an affirmative answer
to each question is the next logical step in both courts’
interpretations of the North Carolina Felony Firearms Act.
A.
With regard to the first question, it is important to
conduct a brief overview of the case law addressing arguments
that North Carolina’s Felony Firearms Act is ex post facto.
In 1999, we rejected an argument that retroactive
application of the former five-year ban on firearm possession
was unconstitutional under the Ex Post Facto Clause. See
O’Neal, 180 F.3d at 123. In so doing, this Court applied a two-
part test. Id. at 122-123. In particular, a court should first
ask whether the legislature’s intent was to impose a punishment
or merely enact a civil or regulatory law. Id. at 122. Next, a
court should determine whether the disability is “so punitive in
fact” as to negate any civil or regulatory intent. Id. In
applying this test, we first found that “North Carolina has made
clear that its intent to enact a civil disability to protect the
public from those felons, whose possession of guns there was the
his previously restored right to possess firearms, and if so
what effect that would have under sections 922(g)(1) and 924(e)
. . ..” O’Neal, 180 F.3d at 121, n.6.
8
most reason to fear, not to impose any punishment on felons.”
Id. at 123. Second, we concluded that the five-year ban does
not impose punishment; rather, the probationary period provides
an additional civil disability in an effort to protect the
public. Id. at 124.
In 2004, we rejected a similar argument attacking the
retroactive application of the permanent ban adopted in 1995.
See Farrow, 364 F.3d at 555. In Farrow, the defendant would
have had his right to possess firearms restored in 1997 – five
years after his unconditional discharge – but for the 1995
amendment to the Felony Firearms Act replacing the five-year ban
on the possession of firearms by ex-felons with a permanent ban.
Id. at 554. In finding no violation of the Ex Post Facto
Clause, the Court cited O’Neal as controlling. Id. at 555.
Like the five-year ban in O’Neal, the indefinite ban was found
to be “rationally connected to the state’s legitimate interest
in protecting the public.” Id.; see also State v. Johnson, 169
N.C.App. 301, 309, 610 S.E.2d 739, 745 (2005) (agreeing with the
reasoning in Farrow and holding that the 1995 amendment does not
violate the ex post facto clause of either the North Carolina or
United States Constitutions).
In 2007, the Court of Appeals of North Carolina handled an
appeal filed by Barney Britt, who had instituted a civil action
against the State of North Carolina based on a claim that
9
retroactive application of the 2004 amendment to the Felony
Firearms Act was, among other things, ex post facto. See Britt
v. State (Britt I), 185 N.C. App. 610, 649 S.E.2d 402 (2007).
In 1979, Britt was convicted of felony possession with intent to
sell and deliver a controlled substance and completed his
sentence in 1982. By operation of law under the Felony Firearms
Act, his civil rights, including his right to possess a firearm,
were restored in 1987. However, the 2004 amendment
retroactively stripped this previously restored right. Id. at
404. This, Britt contended, was a violation of the ex post
facto clauses of both the North Carolina and United States
Constitutions. Id. at 406. In rejecting this contention, the
Court of Appeals quoted O’Neal for the proposition that “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 reason to fear, not to
impose any punishment or penalty on felons.” Id. (quoting
O’Neal, 180 F.3d at 123).
In 2009, however, the Supreme Court of North Carolina
reversed Britt I, finding successful an as-applied challenge to
the 2004 amendment based upon North Carolina’s equivalent to the
Second Amendment right to bear arms. Britt v. State (Britt II),
363 N.C. 546, 550, 681 S.E.2d 320, 323 (2009). Specifically,
the Supreme Court found the 2004 amendment unconstitutional as
10
“an unreasonable regulation, not fairly related to the
preservation of public peace and safety” as applied to Britt.
Id. In reaching this conclusion, the Supreme Court explained:
In particular, it is unreasonable to assert that a
nonviolent citizen 6 who has responsibly, safely, and
legally owned and used firearms for seventeen years is
in reality so dangerous that any possession at all of
a firearm would pose a significant threat to public
safety.
Id.Accordingly, the Supreme Court reversed the Court of
Appeals to the extent that the lower court found the 2004
amendment could be constitutionally applied to Britt. Id. In
effect, the Supreme Court reversed on other grounds, i.e.,
Britt’s state right to bear arms, leaving the ex post facto
analysis intact. See id.Therefore, taken together, O’Neal, Farrow, Johnson, Britt
I, and Britt II uphold as constitutional the proposition that
North Carolina’s Felony Firearms Act retroactively strips a
felon of a previously restored right to possess firearms. 7
6
This refers to the fact that Britt’s underlying felony was
a nonviolent drug offense, which did not involve the use of a
firearm. Unlike Britt, Hairston is a violent citizen, as
indicated by his previous “violent felony” convictions. Thus,
Hairston’s case is distinguishable from Britt II.
7
The Court notes that, under circumstances like in Britt
II, a felon’s right to possess firearms may again be restored by
judicial determination. This represents the sole limitation,
under existing North Carolina case law, to the power of the
(Continued)
11
B.
Next, we must take up the remaining issue: whether
stripping a restored right to possess firearms effectively
revives a previously negated predicate conviction for purposes
of sections 922(g)(1) and 924(e). Illustrative on this issue is
Melvin v. United States, 78 F.3d 327 (7th Cir. 1996), a case
cited in the ex post facto analysis in Britt I.
In Melvin, the defendant was convicted of felony offenses
in 1974 and 1975. 78 F.3d at 328. He was released in 1977,
and his firearm rights were restored in 1982. 8 Id. However, in
1984, Illinois enacted a firearms statute making it illegal for
felons to possess weapons regardless of their date of
conviction. Id. at 329. In other words, “[t]he Illinois felon
in possession law clearly forbids all convicted felons from
possessing guns, regardless of whether they were convicted
before or after 1984.” Id. at 330. In holding the defendant’s
prior convictions were predicate convictions for purposes of
sections 922(g)(1) and 924(e), the Seventh Circuit explained:
North Carolina Felony Firearms Act to strip previously restored
firearm rights.
8
The Illinois firearms statute in effect at the relevant
time provided the same five-year temporary ban as the North
Carolina version Hairston now seeks to apply.
12
Although Illinois law may have allowed Melvin to
possess firearms between May 27, 1982 and July 1, 1984
(the effective date of Ill. Rev. Stat. ch. 38 para.
24-1.1, now codified as 720 ILCS 524-1.1), that does
not require the permanent exclusion of Melvin’s three
Illinois convictions for purposes of invoking section
924(e)’s mandatory minimum sentences. Illinois did
not allow Melvin to possess guns at the time of his
arrest in 1998.
Id. at 330.
Like the 1984 version of the Illinois felon in possession
law, the 1995 version of North Carolina’s Felony Firearms Act
clearly forbids all convicted felons from possessing guns,
regardless of whether they were convicted before or after its
effective date, December 1, 1995. Thus, the same logic applies:
although North Carolina law may have allowed Hairston to possess
firearms between October 1, 1992 (date of restoration) and
December 1, 1995 (effective date of complete ban), that does not
require the permanent exclusion of Hairston’s 1980s convictions
for purposes of invoking section 924(e)’s enhanced sentencing
provisions. As for the Melvin Court, most significant for this
Court is that North Carolina did not allow Hairston to possess
guns at the time of his arrest in 2007. In other words, though
Hairston’s right to possess a weapon had once been restored, it
had again been stripped by virtue of the 1995 amendment. As a
result, these convictions were once again available for purposes
of sections 922(g)(1) and 924(e). Accordingly, it was not plain
13
error for the district court to apply the enhanced sentencing
provisions of section 924(e).
IV.
Because Hairston’s claim that his 1980s convictions should
not trigger application of 18 U.S.C. § 924(e) fails on the
merits, it fails pursuant to either plain error or de novo
review. Accordingly, we affirm the district court’s finding of
armed career criminal status and the resulting imposition of a
210-month sentence.
AFFIRMED
14