United States v. Vitrano, Thomas P. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-4184
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
THOMAS P. VITRANO,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 02 CR 199—Rudolph T. Randa, Chief Judge.
____________
ARGUED SEPTEMBER 8, 2004—DECIDED APRIL 19, 2005
____________
Before POSNER, RIPPLE and WOOD, Circuit Judges.
RIPPLE, Circuit Judge. Thomas Vitrano pleaded guilty to
one count of possessing a firearm as a felon and to one
count of possessing a firearm while subject to a domestic
abuse injunction in violation of 18 U.S.C. § 922(g). The
Government appeals the district court’s determination that
Mr. Vitrano was not subject to an enhanced sentence under
the Armed Career Criminal Act, 18 U.S.C. § 924(e). For the
reasons set forth in the following opinion, we reverse the
judgment of the district court.
2 No. 03-4184
I
BACKGROUND
On August 28, 2002, Mr. Vitrano’s former girlfriend
contacted the Wisconsin State Police when she discovered
a wrapped birthday present and a birthday card on her
porch. The responding officers later found the “present”
to contain two functioning pipe bombs. As part of their in-
vestigation, officers executed a search warrant of Mr. Vitrano’s
residence and found, among other things, a Winchester X
12-gauge shotgun slug. A grand jury returned a single count
indictment under 18 U.S.C. § 922(g)(1) for the unlawful
possession of a firearm by a felon. Law enforcement officers
later discovered that Mr. Vitrano had used a Remington 870
shotgun while duck hunting and that he was the subject of
a domestic abuse injunction in effect from January 29, 2001,
through January 29, 2003. The grand jury therefore returned
a superseding indictment with three additional counts.
Count Two related to Mr. Vitrano’s possession of the shot-
gun slug while subject to the domestic abuse injunction.
Counts Three and Four related, respectively, to his being a
felon in possession of the Remington shotgun in violation of
§ 922(g)(1), and to his possession of the shotgun while the
subject of the domestic abuse injunction in violation of
§ 922(g)(8)(B). Mr. Vitrano pleaded guilty to Counts Three
and Four.
The Pre-Sentence Investigation Report (“PSR”) noted that
Mr. Vitrano had three previous convictions. Two of those
convictions were for endangering safety regardless of life
and the other was for escape. Despite these convictions, the
PSR did not recommend that Mr. Vitrano be considered an
armed career criminal, see 18 U.S.C. § 924 (e)(1), and there-
fore did not recommend enhancement of his sentence under
U.S.S.G. § 4B1.4(b)(3)(B).
No. 03-4184 3
Upon examination of the PSR, the Government filed an
objection. Mr. Vitrano had been discharged from his 1977
conviction after completing his sentence in 1983; in the
Government’s view, this conviction ought to have counted
1
for purposes of § 924(e)(1). Mr. Vitrano did not produce a
copy of his discharge from the 1977 conviction because it
could not be located. The parties therefore obtained sample
discharge orders from 1983 that had been stored at the
Wisconsin Historical Society. Mr. Vitrano submitted several
sample orders, which all stated “[defendant] be, and hereby
is, discharged absolutely.” R.49. The Government submitted
five types of orders, which provided: (1) “[a]ny civil rights
lost as a result of such judgments of conviction are restored
by virtue of this discharge”; (2) the defendant “be and,
hereby is, discharged absolutely”; (3) “the aforesaid be, and
hereby is, discharged”; (4) the defendant “be, and hereby is,
discharged from said judgment or order only”; and (5) the
defendant “is discharged and released from any further
custody and control of or by the State of Wisconsin.” R.48 at
7.
Before the district court, Mr. Vitrano contended that, no
matter which of the sample discharges he had received, the
1977 conviction could not count under § 924(e)(1) because
none of the forms contained language that expressly would
have notified him that he could not ship, transport, receive
or possess a firearm. In his view, such explicit notification
2
was required by 18 U.S.C. § 921(a)(20). The Government
1
The PSR indicates that Mr. Vitrano had been discharged from
the 1988 and 1995 convictions as well; he has not challenged the
use of those convictions for purposes of § 924(e)(1).
2
18 U.S.C. § 921(a)(20) provides:
The term “crime punishable by imprisonment for a term
exceeding one year” does not include—
(continued...)
4 No. 03-4184
took a different view. It submitted that only the first sample
discharge order would have restored Mr. Vitrano’s civil
rights and, therefore, needed an express firearms reserva-
tion; it further contended that Mr. Vitrano could not
establish by a preponderance of evidence that he had re-
ceived that type of order rather than the remaining four
types.
In addressing the arguments of the parties, the district
court noted, as a threshold matter, that there was no dispute
that Mr. Vitrano had been discharged and that his discharge
order would have matched one of the five sample orders
procured by the parties from the Historical Society. The
district court then expressed the view that the disclosure
requirement of § 921(a)(20) addresses the possibility that a
prisoner will receive one of four categories of discharges: a
type of discharge that informs the defendant his civil rights
are restored, an expungement, a set aside, or a pardon.
2
(...continued)
(A) any Federal or State offenses pertaining to antitrust
violations, unfair trade practices, restraints of trade, or
other similar offenses relating to the regulation of busi-
ness practices, or
(B) any State offense classified by the laws of the State as
a misdemeanor and punishable by a term of imprison-
ment of two years or less.
What constitutes a conviction of such a crime shall be
determined in accordance with the law of the jurisdiction in
which the proceedings were held. 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 con-
sidered 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.
No. 03-4184 5
The district court’s discourse with counsel revealed that
the court believed that § 921(a)(20)’s notice requirement
applied to each and every category of discharge that, ac-
cording to the files of the Historical Society, Wisconsin
might have issued—not just the first category, which recited
that civil rights were restored. Thus, regardless of which of
the five sample discharges Mr. Vitrano had received,
§ 921(a)(20) required the exclusion of his conviction for
purposes of § 924(e)(1) because none would have contained
3
a firearms reservation. In response to the Government’s
questions, the district court clarified that a discharge could
4
be characterized as a set aside.
II
DISCUSSION
We review a district court’s statutory interpretation
de novo. See United States v. Davis, 16 F.3d 212, 214 (7th Cir.
1994). In approaching a question of statutory interpretation,
we begin with the plain wording of the relevant statutory
provisions.
The basics of the statutory scheme are readily ascertain-
able from a reading of the statutory language. A person who
violates § 922(g) and who has at least three prior convictions
for a violent felony, committed on separate occasions, is
subject to an enhanced sentence under 18 U.S.C. § 924(e)(1).
3
The district court referred to § 921(a)(20) as a heightened notice
statute, and it found Mr. Vitrano’s presumable knowledge that he
could not possess a firearm irrelevant.
4
The district court declined the Government’s offer to brief
whether a discharge order constituted an expungement or a set
aside under Wisconsin law because the court thought federal law
necessary to interpret § 921(a)(20).
6 No. 03-4184
A “violent felony” is a crime that, among other things, is
“punishable by imprisonment for a term exceeding one
year.” 18 U.S.C. § 924(e)(2)(B). Section 921(a)(20) excludes
certain convictions for purposes of § 924(e)(1):
What constitutes a conviction of such a crime shall
be determined in accordance with the law of the juris-
diction in which the proceedings were held. Any con-
viction 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, expunge-
ment, 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). The Government has the burden to
establish three prior felonies; upon that showing, the
defendant must prove by a preponderance of the evidence
that a conviction cannot be used under § 924(e)(1). See Hill
v. United States, 118 F. Supp. 2d 910, 914 n.4 (E.D. Wis. 2000).
The first sentence of § 921(a)(20) directs us to look at state
law to determine whether a defendant is deemed convicted.
United States v. Erwin, 902 F.2d 510, 512 (7th Cir. 1990).
We have addressed previously the operation of
§ 921(a)(20)’s notice requirement. In Erwin, we explained:
The second sentence of § 921(a)(20) is an anti-mouse-
trapping rule. If the state sends the felon a piece of
paper implying that he is no longer “convicted” and
that all civil rights have been restored, a reservation in
a corner of the state’s penal code can not be the basis of
a federal prosecution. A state must tell the felon point
blank that weapons are not kosher. The final sentence of
§ 921(a)(20) cannot logically mean that the state may
dole out an apparently-unconditional restoration of
No. 03-4184 7
rights yet be silent so long as any musty statute with-
holds the right to carry guns. Then the state would
never have to say a peep about guns; the statute would
self-destruct. It must mean, therefore, that the state
sometimes must tell the felon that under state law he is
not entitled to carry guns . . . . When, however, the state
sends no document granting pardon or restoring rights,
there is no potential for deception, and the question
becomes whether the particular civil right to carry guns
has been restored by law.
Id. at 512-13.
In Dahler v. United States, 143 F.3d 1084 (7th Cir. 1998), we
held that a discharge order stating that “[a]ny civil rights
lost as result of conviction herein described, are restored by
virtue of this discharge,” needed to state expressly that the
person may not ship, transport, possess or receive firearms
even after receiving the discharge order. Dahler, 143 F.3d at
1086, 1088. In a later opinion, United States v. Gillaum, 372
F.3d 848 (7th Cir. 2004), we also focused on, among other
things, the notice requirement.
Read as a whole, we believe that these cases are best un-
derstood as establishing the principle that a state may not
employ language in discharging a prisoner that will lull the
individual into the misapprehension that civil rights have
been restored to the degree that will permit him to possess
firearms. If a state does use language that creates such a
false sense of security, that conviction may not be used to
justify an enhanced sentence under 18 U.S.C. § 924(e).
In the case before us, as the Government concedes, a dis-
charge certificate stating that “[a]ny civil rights lost as a
result of such judgments of conviction are restored by virtue
of this discharge,” would permit Mr. Vitrano to prevail
because, as we said in Dahler, such language indicates a full
restoration of all civil rights unless accompanied by an
8 No. 03-4184
express prohibition on the use of firearms. See Dahler, 143
F.3d at 1086-88. In contrast, none of the other four types of
certificates that Mr. Vitrano might have received purported
to restore civil rights. A person receiving any one of these
discharges would not be misled into believing that the
certificate also gave him a right to carry firearms. We note
specifically that we do not believe that a discharge certifi-
cate that states “[defendant] be, and hereby is, discharged
absolutely” can be read reasonably as absolving an indi-
vidual of a criminal conviction or of the collateral conse-
quences of that conviction.
Because Mr. Vitrano cannot show by a preponderance of
the evidence that he received a discharge certificate whose
language might be read reasonably to restore all of his civil
rights, such that he would be misled if not informed that
firearms were prohibited, § 921(a)(20) is not implicated.
Conclusion
Accordingly, for the foregoing reasons, we reverse the
judgment of the district court and remand the case for re-
sentencing in accordance with this opinion.
REVERSED and REMANDED
No. 03-4184 9
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-19-05