United States v. Robert Parks , 442 F. App'x 23 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4211
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT CHRISTOPHER PARKS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:08-cr-00291-NCT-1)
Submitted: March 28, 2011 Decided: August 4, 2011
Before MOTZ, GREGORY, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas H. Johnson, Jr., GRAY JOHNSON & LAWSON, LLP, Greensboro,
North Carolina, for Appellant. John W. Stone, Jr., Acting
United States Attorney, Terry M. Meinecke, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Christopher Parks was convicted by a jury of
possessing firearms after having been convicted of a felony, in
violation of 18 U.S.C. § 922(g)(1) (2006), and sentenced to 41
months of imprisonment. He appeals, claiming, first, that his
civil rights had been restored and, second, that the district
court’s denial of his defense of entrapment by estoppel
constituted a denial of his right to due process. For the
reasons that follow, we affirm.
Parks was convicted in North Carolina state court in
1988 of a felony drug offense and sentenced to five years
imprisonment, with all five suspended, and placed on supervised
probation. Parks’ sentence was discharged on November 18, 1991;
it is undisputed that he was not pardoned and his conviction was
not overturned. In November 2007, officers with the Rockingham
County, North Carolina, Sheriff’s Department executed a search
warrant at Parks’ residence and retrieved a number of firearms.
At trial, Parks argued that he believed that his civil rights
had been restored and, therefore, he lawfully owned the guns at
issue. In support of his defense, Parks attempted to introduce
into evidence a 1997 order issued by a North Carolina state
district court that directed the return of a certain firearm to
the “rightful owner.” The district court disallowed the
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admission of this evidence and refused to instruct the jury on
entrapment by estoppel.
Parks first argues that, under North Carolina law, his
civil rights had been restored and, therefore, he was lawfully
entitled to own a firearm. In determining whether state law
provides that a defendant’s civil rights have been restored, we
look “to the whole of state law.” See United States v. McLean,
904 F.2d 216, 218 (4th Cir. 1990). North Carolina law restores
to convicted felons some civil rights upon release from prison.
See N.C. Gen. Stat. § 13-1 (2009). Upon his discharge in 1991,
Parks regained his “rights of citizenship,” including his rights
to vote, hold office, and serve jury duty. N.C. Gen. Stat.
§§ 163-55(a)(2) and 9-3; see McLean, 904 F.2d at 217 n.1.
However, Parks 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 years after release from prison. N.C. Gen.
Stat. § 14-415.1(a) (1975) (amended 1995).
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. 2004); see
N.C. Gen. Stat. § 14-415.1(a) (1995). Under the pre-1995
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statute, Parks’ right to possess firearms would have been
restored on November 18, 1996. However, Parks’ rights were not
restored on that date due to the intervening amendment of the
statute. Moreover, this court has held that the retroactive
application of amended North Carolina Felony Firearms Act
complete ban on felon firearm possession does not violate the Ex
Post Facto Clause. Farrow, 364 F.3d at 555. Finally, Parks’
mistaken belief that his right to own a firearm had been
restored is not a defense to a § 922(g) offense. United
States v. Estrella, 104 F.3d 3, 9 (1st Cir. 1997); United
States v. Lomax, 87 F.3d 959, 962 (8th Cir. 1996).
Parks also asserts that the district court abused its
discretion by denying his request to present his evidence in
support of a defense of “entrapment by estoppel.” A criminal
defendant may assert an entrapment by estoppel defense when the
government affirmatively assures him that certain conduct is
lawful, the defendant thereafter engages in the conduct in
reasonable reliance on those assurances, and a criminal
prosecution based upon the conduct ensues. See Raley v. Ohio,
360 U.S. 423, 438-39 (1959). To be able to assert the defense,
however, a defendant has to show more than “vague or even
contradictory” statements by the government; “he must
demonstrate that there was ‘active misleading’ in the sense that
the government actually told him that the proscribed conduct was
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permissible.” United States v. Aquino-Chacon, 109 F.3d 936, 939
(4th Cir. 1997). (internal citation omitted). Because Parks’
evidence failed to establish the elements of the defense, the
district court did not abuse its discretion in denying his
request to introduce the state court order into evidence or to
instruct the jury on the entrapment by estoppel defense.
Accordingly, we affirm. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
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