UNITED STATES of America, Plaintiff-Appellee, v. Danny Lynn QUALLS, Defendant-Appellant , 172 F.3d 1136 ( 1999 )

Opinion by Judge CYNTHIA HOLCOMB HALL; Partial concurrence and Partial dissent by Judge MICHAEL DALY HAWKINS.

CYNTHIA HOLCOMB HALL, Circuit Judge:

In United States v. Qualls, — U.S. -, 119 S.Ct. 398, 142 L.Ed.2d 323 (1998), the Supreme Court vacated our en banc opinion in this case, and remanded it to us for reconsideration in light of Caron v. United States, 524 U.S. 308, 118 S.Ct. 2007, 141 L.Ed.2d 303 (1998). After careful reconsideration, we affirm Qualls’ conviction.

BACKGROUND

In 1975, Danny Lynn Qualls (“Qualls”) pled guilty to assault with a deadly weapon in violation of California Penal Code § 245(a). The California court granted Qualls felony probation, and suspended further proceedings. In 1980, the California court ordered early termination of Qualls’ probation upon payment by Qualls of $500 for probation costs. Although assault with a deadly weapon may be either a misdemeanor or a felony under California law, the circumstances of Qualls’ case made it a felony.

Qualls’ conviction was a felony because the offense was punishable by more than one year in prison, see United States v. Horodner, 993 F.2d 191, 194 (9th Cir.1993), and because the conviction did not qualify as a misdemeanor under either California Penal Code § 17(b)(1) or (3). Qualls’ $500 payment for early termination of his probation was merely a fee to cover the costs of Qualls’ probation, and was not a “punishment other than imprisonment in the state prison.” See Cal.Penal Code § 17(b)(1). In addition, Qualls’ initial probation was not a “judgment imposing punishment other than imprisonment in the state prison.” See id.; United States v. Robinson, 967 F.2d 287, 293 (9th Cir.1992) (citations omitted). Finally, the California court never declared Qualls’ conviction a misdemeanor, nor did Qualls ever apply to have his offense declared a misdemeanor. See Cal.Penal Code § 17(b)(3); People v. Banks, 53 Cal.2d 370, 1 Cal.Rptr. 669, 348 P.2d 102, 116 (1959) (in banc). Under California law, Qualls was prohibited from possessing pistols, revolvers, or other concealable firearms. See Cal.Penal Code § 12021(a); People v. Loomis, 231 Cal.App.2d 594, 596, 42 Cal.Rptr. 124 (Cal.Ct.App.1965).

In 1994, Qualls was indicted for knowingly possessing seven firearms—two revolvers, one pistol, and four rifles—in violation of the federal felon-in-possession statute, 18 U.S.C. § 922(g)(1). At this time, California law allowed Qualls to possess any of the four rifles, but did not allow him to possess either of the two revolvers or the pistol. Our interpretation of the federal felon-in-possession statute allowed Qualls to possess any weapon that he was allowed to possess under state law. See United States v. Dahms, 938 F.2d 131, 134-35 (9th Cir.1991). Therefore, at the time of Qualls’ trial, Qualls could have been convicted only if the jury unanimously agreed that Qualls had possessed either of the two revolvers or the pistol, but not any one of the four rifles. See id.

At trial, however, the district court instructed the jury that Qualls could be convicted if the jury unanimously agreed that the government had proved beyond a reasonable doubt that Qualls possessed any one of the firearms described in the indictment. At that time, the district court’s instruction was erroneous. Although Qualls was convicted, there was no way to determine which of the seven weapons listed in the indictment the jury had unanimously agreed that Qualls had possessed. It was therefore impossible to determine whether Qualls had been convicted on a proper basis. Consequently, we reversed Qualls’ conviction under Griffin v. United States, 502 U.S. 46, 52, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991) (requiring verdict to be set aside when “verdict is supportable on one ground, but not another, and it is impossible to tell which ground the jury selected”) (citation omitted). See United States v. Qualls, 108 F.3d 1019, 1024 (9th Cir.1997). We then granted en banc review in this case to reexamine our decision in Dahms. See United States v. Qualls, 140 F.3d 824, 825 (9th Cir.1998) (en banc) [hereinafter Qualls II], vacated, - U.S. -, 119 S.Ct. 398, 142 L.Ed.2d 323.

In Qualls II, we reiterated our holding in Dahms that the federal felon-in-possession statute does not apply to a former felon who possesses a firearm that he is allowed to possess under state law. See 140 F.3d at 826. In so doing, we rejected the all-or-nothing interpretation of the federal felon-in-possession statute that had been adopted by other circuits. See United States v. Estrella, 104 F.3d 3, 7-9 (1st Cir.) (prohibiting a felon from possessing all firearms under 18 U.S.C. §§ 921(a)(20) and 922(g)(1) if the felon is prohibited from possessing any firearm under state law), cert. denied, 521 U.S. 1110, 117 S.Ct. 2494, 138 L.Ed.2d 1001 (1997); United States v. Driscoll, 970 F.2d 1472, 1480 (6th Cir.1992) (same); United States v. Burns, 934 F.2d 1157, 1160 (10th Cir.1991) (same).

In Caron, the Supreme Court adopted the all-or-nothing construction of the federal felon-in-possession statute. See 524 U.S. at -, 118 S.Ct. at 2010-12. In light of the rule announced in Caron, the Supreme Court asked us to reconsider our earlier decision in this case.

DISCUSSION

We recognize today Caron’s binding interpretation of the federal felon-in-possession statute, and apply to Qualls the all-or-nothing rule announced in Car-on.¹ When we apply retroactively the Caron rule to Qualls, we find that the district court’s jury instruction was not erroneous. Under Caron, Qualls could be convicted for possessing any one of the seven firearms for which he was indicted. See Caron, 524 U.S. at - - -, 118 S.Ct. at 2010-12. The district court’s jury instruction is consistent with Caron because the district court instructed the jury that Qualls could be convicted if the jury found beyond a reasonable doubt that Qualls had possessed any one of the weapons listed in the indictment. Therefore, the district court properly instructed the jury.

CONCLUSION

Based on the foregoing, we affirm Qualls’ conviction.

AFFIRMED.

1 . Due process bars retroactive application of a judicial expansion of a law only if the change in the law is unforeseeable. See Brown v. Ohio, 432 U.S. 161, 169 n. 8, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Poland v. Stewart, 117 F.3d 1094, 1099 (9th Cir.1997), cert. denied, - U.S. -, 118 S.Ct. 1533, 140 L.Ed.2d 683 (1998). The Supreme Court has held that a change in the law is foreseeable when circuits are split on the proper construction of a statute. See United States v. Rodgers, 466 U.S. 475, 484, 104 S.Ct. 1942, 80 L.Ed.2d 492 (1984). In this case, the circuits were split on the proper construction of the federal felon-in-possession statute when Qualls committed the acts for which he was indicted and convicted. See Driscoll, 970 F.2d at 1480 (all-or-nothing rule); United States v. Ellis, 949 F.2d 952, 955 (8th Cir.1991) (absent full restoration of firearms rights, civil rights not restored at all); United States v. Dahms, 938 F.2d 131, 134-35 (9th Cir.1991) (felon has right to carry under federal law any weapon that is allowed under state law); Burns, 934 F.2d at 1160 (all-or-nothing rule); see also Estrella, 104 F.3d at 7-9 (all-or-nothing rule); United States v. Lee, 72 F.3d 55, 57-58 (7th Cir.1995) (absent full restoration of firearms rights, civil rights not restored at all); United States v. Tomlinson, 67 F.3d 508, 513 (4th Cir.1995) (felon has right to carry under federal law any weapon that is allowed under state law). Therefore, a change in the law was foreseeable, and due process is not violated by retroactive application of the Caron rule to Qualls. To the extent that our decision in United States v. Albertini, 830 F.2d 985 (9th Cir.1987), conflicts with Rodgers, we overrule Albertini. In Albertini, we stated that an individual could rely on "the latest controlling court opinion ... until that opinion is reversed, or at least until the Supreme Court has granted certiorari.” Id. at 989. In Rodgers, however, the Supreme Court stated that “the existence of conflicting cases from other Courts of Appeals made review of that issue by this Court and against the position of the respondent reasonably foreseeable.” 466 U.S. at 484, 104 S.Ct. 1942. Thus, under Rodgers, reversal or the grant of certiorari are immaterial to the due process inquiry; instead, the existence of a circuit split is the focus of that inquiry.