United States v. Randy Sanford , 707 F.3d 594 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1255n.06
No. 11-1847 FILED
Dec 06, 2012
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
v. ) DISTRICT OF MICHIGAN
)
RANDY SANFORD, ) OPINION
)
Defendant-Appellant. )
)
)
BEFORE: COLE and KETHLEDGE, Circuit Judges; and THAPAR, District Judge.*
COLE, Circuit Judge. Defendant-Appellant Randy Sanford appeals the denial of his motion
to dismiss his indictment. For the following reasons, we AFFIRM.
I.
On June 9, 2010, Michigan police discovered that Randy Sanford possessed multiple
firearms. This discovery, along with Sanford’s two prior domestic assault convictions in Michigan,
led a grand jury to indict Sanford for violating 18 U.S.C. § 922(g)(9), which makes it unlawful for
a person who has been convicted of a misdemeanor crime of domestic violence to possess any
firearm.
*
The Honorable Amul R. Thapar, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
No. 11-1847
United States v. Sanford
Sanford moved to dismiss the indictment under 18 U.S.C. § 921(a)(33)(B)(ii), which says:
A person shall not be considered to have been convicted of [a misdemeanor crime of
domestic violence] for purposes of this chapter if the conviction . . . is an offense for
which the person . . . has had civil rights restored (if the law of the applicable
jurisdiction provides for the loss of civil rights under such an offense) unless the
pardon, expungement, or restoration of civil rights expressly provides that the person
may not ship, transport, possess, or receive firearms.
Sanford argued that his prior convictions should not count as predicate offenses because his civil
rights had been restored upon his release from incarceration. The district court denied Sanford’s
motion because it reasoned that his convictions restricted his ability to transport a firearm.
Sanford pleaded guilty, but reserved the right to appeal the judgment “on the basis that his
prior conviction for a misdemeanor crime of domestic violence does not meet the definition set forth
in [18 U.S.C. § 921(a)(33)].” The district court sentenced Sanford to one month’s imprisonment,
two years of supervised release, and a $1000 fine. Sanford thereafter filed this appeal.
II.
When reviewing a motion to dismiss an indictment, we review the district court’s legal
conclusions de novo. Our standard of review for factual findings in such cases is “somewhat
unclear,” United States v. Grenier, 513 F.3d 632, 635-36 (6th Cir. 2008) (collecting cases ), but that
does not matter here since Sanford does not challenge any of the district court’s factual findings.
The parties do not dispute that Sanford’s domestic assault convictions under Mich. Comp.
Laws § 750.81(2) qualify as crimes of “domestic violence” (emphasis added) as required by 18
U.S.C. § 922(g)(9). In United States v. Castleman, No. 10-5912, — F.3d —, 2012 WL 4096234(Sept. 19, 2012), this Court held that to categorically meet the definition of “misdemeanor crime of
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domestic violence” in § 921(a)(33)(A), a state crime must require “violent force, that is, force
capable of causing physical pain or injury to another person.” Castleman, 2012 WL 4096234, at *4;
Johnson v. United States, 130 S. Ct. 1265, 1271 (2010). We do not need to decide whether
Castleman would apply in this case because Sanford waived his opportunity to argue that his prior
convictions were insufficiently violent to qualify as misdemeanor crimes of domestic violence for
purposes of 18 U.S.C. § 922(g)(9). We do not always apply waiver in cases where “intervening case
authority might change the result,” Planned Parenthood Cincinnati Region v. Taft, 444 F.3d 502,
516 (6th Cir. 2006), but we find it equitable to apply waiver here because the argument in question
had already been raised in several circuits with some success. Sanford had adequate notice that the
argument existed and was viable. See United States v. Hays, 526 F.3d 674 (10th Cir. 2008) (holding
battery under Wyoming law did not necessarily qualify as a misdemeanor crime of domestic
violence); United States v. Nason, 269 F.3d 10 (1st Cir. 2001) (holding all Maine assault convictions
against a domestic partner qualified); United States v. White, 606 F.3d 144 (4th Cir. 2010) (holding
Virginia domestic assault and battery statute did not qualify).
Sanford’s argument in this appeal instead focuses on the “rights restoration” exception
whereby a person is not considered to have been convicted of a misdemeanor crime of domestic
violence for purposes of 18 U.S.C. § 922(g)(9) “if the conviction . . . is an offense for which the
person . . . has had civil rights restored . . . .” 18 U.S.C. § 921(a)(33)(B)(ii). When Sanford was
released he recovered certain civil rights, such as his right to vote under Mich. Comp. Laws
§ 168.758b. Sanford therefore contends that his civil rights were fully restored upon release from
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incarceration and his domestic assault convictions cannot serve as predicate offenses for the purposes
of 18 U.S.C. § 922(g)(9).
However, the “rights restoration” exception has an “unless clause”: the exception applies
“unless the . . . restoration of civil rights expressly provides that the person may not ship, transport,
possess, or receive firearms.” 18 U.S.C. § 921(a)(33)(B)(ii). Under Michigan law, Sanford’s
domestic assault convictions made him ineligible for a concealed weapons permit for eight years
after each conviction. Mich. Comp. Laws § 28.425b(7)(h)(xv). The government contends that
Sanford’s ineligibility for a concealed weapons permit restricts his ability to “transport” a firearm
sufficiently to trigger the “unless clause.”
Sanford’s ineligibility for a concealed weapons permit severely hindered, but did not
completely eliminate, his ability to transport a handgun. Under Michigan law, a person without a
concealed weapons permit may “not carry a pistol concealed on or about his or her person, or,
whether concealed or otherwise, in a vehicle operated or occupied by the person, except in his or her
dwelling house, place of business, or on other land possessed by the person, without a license to
carry the pistol as provided by law . . . .” Mich. Comp. Laws § 750.227(2). Mich. Comp. Laws
§ 750.231a(1)(d) provides an exception to that rule, allowing a person to transport “a pistol for
lawful purpose” if the pistol “is licensed by the owner or occupant of the motor vehicle,” unloaded,
and in a closed case in the trunk. The statute specifies seven lawful purposes, such as, for example,
transportation to a target shooting area or a place of sale. See Mich. Comp. Laws § 750.231a(2)(b)
(specifying additional purposes). On the other hand, with a concealed weapons permit, Sanford
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United States v. Sanford
could “[c]arry a pistol in a vehicle, whether concealed or not concealed, anywhere in [Michigan,
except as otherwise provided by law].” Mich. Comp. Laws § 28.425c(2).
In isolation, the text of 18 U.S.C. § 921(a)(33)(B)(ii) is ambiguous as to whether Sanford’s
remaining restriction triggers the “unless clause,” but Supreme Court precedent resolves the
ambiguity, compelling us to hold that Sanford’s ineligibility for a concealed weapons permit restricts
his ability to transport firearms sufficiently to trigger the “unless clause.”
In Caron v. United States, 524 U.S. 308 (1998), Gerald Caron was convicted for violating
18 U.S.C. § 922(g)(1), which makes it unlawful for a person convicted of a crime punishable by
more than one year of imprisonment to possess any firearm. Id. at 309. His sentence was enhanced
under 18 U.S.C. § 924(e), which mandates that a defendant with three violent felony convictions
receive an enhanced sentence. Caron objected to the enhancement, arguing that a prior
Massachusetts conviction should not have been a predicate offense because of a similar “rights
restoration” exception. See Caron, 524 U.S. at 311. As in the present case, an “unless clause”
modified the exception: “[the ‘rights restoration’ exception applies] unless such . . . restoration of
civil rights expressly provides that the person may not . . . possess . . . firearms.” 18 U.S.C.
§ 921(a)(20). Massachusetts law permitted Caron to possess rifles and shotguns, but, because of his
past conviction, banned him from possessing handguns anywhere outside of his home or business.
The Supreme Court held that the restriction on Caron’s handgun possession rights was an express
restriction on his ability to possess firearms that triggered the “unless clause.”
The Supreme Court adopted the government’s “all-or-nothing” position, under which:
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[A] state weapons limitation on an offender activates the uniform federal ban on
possessing any firearms at all. This is so even if the guns the offender possessed
were ones the State permitted him to have. The state has singled out the offender as
more dangerous than law-abiding citizens, and federal law uses this determination
to impose its own broader stricture.
Caron, 524 U.S. at 315. The Court rejected the dissent’s position that the “plain meaning” of the
statute “[triggers the ‘unless clause’] only when the State additionally prohibits those ex-felons from
possessing firearms altogether.” Id. at 318 (Thomas, J., dissenting). A civil rights restoration that
severely limits (but does not ban) the possession of even one type of firearm is, under Caron, one
that “expressly provides that the person may not . . . possess . . . firearms.”
To distinguish his case from Caron, Sanford argues on appeal that the “unless clause”
“speaks only to civil rights,” such as handgun possession, and cannot be triggered by denial of
“privilege[s]” such as concealed weapons permits. The Supreme Court’s post-Caron decision in
District of Columbia v. Heller, 554 U.S. 570 (2008), suggests that a handgun possession ban, such
as the one in Caron, might infringe a civil right, whereas denial of a concealed weapons permit, as
in the present case, does not. See id. at 626. However, the restriction in Caron did not impinge on
the constitutional right announced in Heller, which was merely to possess a handgun in one’s home.
Caron was only restricted outside of his home or business. Therefore, Sanford’s attempt to
distinguish Caron as a matter of civil rights restriction, as opposed to a denial of privilege, fails.
There are only two relevant distinctions between the Michigan and Massachusetts laws, and
neither is material: first, the latter denies a license to carry, whereas the former denies a permit to
carry a concealed weapon; and second, in Michigan, Sanford is still able, for some limited purposes,
to transport a pistol in his vehicle without the permit. Logistically, Sanford’s restrictions are similar
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to Caron’s: Sanford is allowed to carry his firearm “in [his] dwelling house, place of business, or on
other land possessed by [him],” but his inability to obtain a concealed weapons permit denies him
the freedom to “[c]arry a pistol concealed on or about [his] person anywhere in the state.” Mich.
Comp. Laws § 750.227(2); Mich. Comp. Laws § 28.425c(2)(a). Just as the restriction in Caron was
not a blanket ban on all handgun possession, the restriction here is not a blanket ban on all pistol
transportation.
Ultimately, Sanford does not have the same freedom to transport his firearm as a Michigan
citizen without a domestic assault record. Under Caron, this is sufficient to trigger the “unless
clause,” which requires us to affirm the district court’s judgment.
We decline to follow an on-point, unpublished opinion from this Court, United States v.
Flores, 118 F. App’x 49 (6th Cir. 2004) (per curiam), because it fails to consider the impact of the
Michigan restriction on the ability to transport. Flores held that ineligibility for a concealed weapons
permit did not trigger the “unless clause” because it would be improper to “extend the ‘unless’
clause . . . to the additional act of concealment of a firearm.” Id. at 53. The majority appeared to
assume that Michigan’s concealed weapons permit statute governs only concealment of a firearm
and nothing more. The dissent raises the matter of transport briefly, but only in the context of
transporting concealed weapons. Id. at 54 (Daughtrey, J., dissenting) (“[A] prohibition against
transporting or possessing concealed weapons is the sort of limitation that Congress must have
intended in adding the ‘unless clause’ to § 921(a)(20).”) (second emphasis added). Unpublished
opinions do not bind this Court, see 6th Cir. R. 32.1, and our holding does not add “concealment”
as a fifth element of the “unless clause” because Sanford’s inability to obtain the concealed weapons
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permit burdens his ability to transport firearms, even when unconcealed in a vehicle. Applying the
Caron analysis to the “transport” prong of 18 U.S.C. § 921(a)(33), we are bound to hold that
Sanford’s ineligibility for a concealed weapons permit triggers the “unless clause” and permits his
indictment for firearm possession in violation of 18 U.S.C. § 922(g)(9).
III.
For the reasons stated above, we AFFIRM the district court’s denial of Sanford’s motion to
dismiss his indictment.
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