United States v. Gregory Washington

Case: 12-60115 Document: 00512237087 Page: 1 Date Filed: 05/09/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 9, 2013
No. 12-60115 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee
v.
GREGORY WASHINGTON,
Defendant–Appellant
Appeal from the United States District Court
for the Northern District of Mississippi
U.S.D.C. No. 1:10-CR-166-1
Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Gregory Washington pled guilty to being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He reserved the
right to appeal the district court’s denial of his motion to quash the indictment
and the applicability of an exception to the felon-in-possession statute for those
whose civil rights have been restored, 18 U.S.C. § 921(a)(20). We AFFIRM.
Washington first contends that the district court should have quashed the
indictment because his prior Louisiana felony conviction was constitutionally
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 12-60115
invalid. At the time of his arrest for the instant offense, however, Washington
remained a convicted felon. Accordingly, his argument is foreclosed by Lewis v.
United States, 445 U.S. 55, 64-67 (1980).1 See, e.g., United States v. Hicks, 389
F.3d 514, 535 (5th Cir. 2004) (“Concluding that ‘Congress clearly intended that
the defendant clear his status [as a convicted felon] before obtaining a firearm,’
the Supreme Court affirmed the defendant’s felon-in-possession conviction
without entertaining the defendant’s collateral attack on the predicate felony.”
(quoting Lewis, 445 U.S. at 64, 66) (alteration in original)); United States v.
Chambers, 922 F.2d 228, 232 (5th Cir. 1991) (“Lewis held that the defendant’s
prior criminal conviction could properly be used as a predicate for his subsequent
conviction for possession of a firearm . . . regardless of the fact that the prior
conviction might otherwise be subject to collateral attack.”).
Washington next argues that his felony conviction cannot serve as a
predicate offense because the restoration-of-rights exception exempts from the
felon-in-possession statute “[a]ny conviction which has been expunged, or set
aside or for which a person has been pardoned or has had civil rights restored
. . . , 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)(B) (emphasis added). Washington asserts that the
“Verification of First Offender Pardon” certificate sent by the Louisiana
Department of Public Safety and Corrections insufficiently apprised him that,
despite restoring several other civil rights, Louisiana law continued to prohibit
1
Washington relies upon Dameron v. United States, 488 F.2d 724 (5th Cir. 1974), but
Lewis specifically overruled that case. See 445 U.S. at 58 n.4, 67; id. at 68 & n.1 (Brennan, J.,
dissenting) (noting that the majority opinion in Lewis is “in disagreement with” Dameron);
United States v. Davis, 773 F.2d 1180, 1181 (11th Cir. 1985) (explaining that Lewis “forecloses
any contention [that Dameron] . . . retains any vitality for the proposition that a collateral
attack on the underlying conviction is permissible as a defense in a subsequent firearms
prosecution”).
2
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him from possessing a firearm. We review this argument de novo. See United
States v. Chenowith, 459 F.3d 635, 636 (5th Cir. 2006).
A defendant must satisfy a two-prong test to invoke the restoration-of-
rights exception. See id. at 637. First, the defendant’s rights must have been
“sufficiently restored” under § 921(a)(20), i.e., he regained the rights to vote, to
hold public office, and to sit on a jury. See id. at 638. Second, the defendant
nonetheless must not be “‘expressly deprived of the right to possess a firearm by
some provision of the restoration law or procedure of the state of the underlying
conviction.’” Id. at 637 (quoting United States v. Thomas, 991 F.2d 206, 213 (5th
Cir. 1993)).
This latter inquiry turns first on the method of restoration. See
Chenowith, 459 F.3d at 637-38. Some states—including Louisiana—restore
rights automatically by operation of state law. See United States v. Dupaquier,
74 F.3d 615, 617-19 (5th Cir. 1996) (construing Louisiana law). If a state
restores rights by issuing a certificate, however, that certificate must expressly
limit the right to possess firearms. See Chenowith, 459 F.3d at 638 (construing
Ohio law). In such cases, “‘a reservation in a corner of the state’s penal code
cannot be the basis of a federal prosecution.’” Id. (quoting Thomas, 991 F.2d at
213). Under either scenario, we endeavor to “give effect” to the state’s chosen
restoration-of-rights regime. Caron v. United States, 524 U.S. 308, 313 (1998).
Louisiana law automatically restores most civil rights upon completion of
a first-time offender’s sentence. See La. Const. art. I, § 20; La. Rev. Stat.
§ 15:572(B)(1), (D). To that end, the Division of Probation and Parole must issue
a certificate to a first-time offender “recognizing and proclaiming that [he] is
fully pardoned for the offense, and that he has all rights of citizenship and
franchise.” La. Rev. Stat. § 15:572(D). Washington’s certificate complied with
these requirements. His rights therefore were “sufficiently restored” by
operation of law. See Dupaquier, 74 F.3d at 617-18.
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No. 12-60115
Louisiana law nonetheless “expressly deprived” Washington of the right
to possess a firearm for ten years after completion of his sentence or parole.2 See
La. Rev. Stat. § 14:95.1(C). He remained under this statutory disability at the
time of his arrest for the instant offense. Washington nonetheless argues that
under United States v. Richardson, 168 F.3d 836 (5th Cir. 1999), his certificate
was not “sufficiently explicit” about the deprivation of his firearm rights.
We disagree. Richardson also concerned a “first-offender pardon” under
Louisiana law. The defendant there, however, argued that his certificate was
silent about his firearm rights and, therefore, that his rights were not “expressly
deprived.” We concluded that a letter in the defendant’s pardon packet clearly
notified him of the Louisiana law restricting his right to possess a firearm. See
id. at 839-40.
Washington similarly had sufficient notice that the restoration of his
“rights of citizenship and franchise” did not automatically extend to possessing
a firearm and that he should verify his status before doing so. His one-page
certificate states: “The right to receive, possess or transport a firearm may not
be restored unless all legal provisions are met and should be determined through
the local law enforcement agency.” Although not a model of clarity, this
language is neither silent as to Washington’s firearm rights nor susceptible to
an objective reading suggesting that those rights were restored. Accordingly, the
district court did not err in determining that Washington’s prior conviction may
serve as a predicate offense under the felon-in-possession statute. See 18 U.S.C.
§ 921(a)(20).
AFFIRMED.
2
Chenowith involved an Ohio statutory framework that made restoration dependent
on the discretionary issuance of a certificate. Here, however, the restoration and deprivation
of Washington’s rights occurred automatically by operation of Louisiana law. See Chenowith,
459 F.3d at 638-39; Dupaquier, 74 F.3d at 617-18. The certificate in Chenowith, moreover,
made no mention of the defendant’s firearm rights. See 459 F.3d at 639.
4