Shane Buchmeier v. United States

In the
United States Court of Appeals
For the Seventh Circuit
No. 06-2958
S HANE B UCHMEIER,
Petitioner-Appellant,
v.
U NITED S TATES OF A MERICA,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 C 1463—Joan B. Gottschall, Judge.
A RGUED M ARCH 5, 2008—D ECIDED S EPTEMBER 10, 2009
Before E ASTERBROOK, Chief Judge, and P OSNER, M ANION,
K ANNE, R OVNER, W OOD , E VANS, W ILLIAMS, SYKES, and
T INDER, Circuit Judges.^
E ASTERBROOK, Chief Judge. Shane Buchmeier was sen-
tenced as an armed career criminal following four
firearms convictions: two for possessing firearms despite
^
Circuit Judge Flaum did not participate in the consideration
or decision of this case.
2 No. 06-2958
a prior felony conviction, 18 U.S.C. §922(g)(1), and two
for receiving stolen firearms, §922(j). His sentence of 188
months’ imprisonment is within the 480-month maxi-
mum for these crimes. (Each conviction carries a maxi-
mum sentence of 10 years, §924(a)(2).) But the armed
career criminal enhancement set a floor of 180 months,
§924(e), and without it Buchmeier might have received
a sentence in the Guideline range of 121 to 151 months
that would have applied, but for the enhancement.
We affirmed Buchmeier’s conviction and sentence on
direct appeal. 255 F.3d 415 (7th Cir. 2001). He then filed a
collateral attack under 28 U.S.C. §2255, contending that
his lawyer had furnished ineffective assistance by failing
to contest the recidivist enhancement. The prosecutor
might have replied that solitary errors in the course of
an otherwise vigorous and competent defense rarely
violate the sixth amendment. See Strickland v. Washington,
466 U.S. 668, 695–96 (1984); Williams v. Lemmon, 557 F.3d
534 (7th Cir. 2009). Instead of making such a riposte,
however, the prosecutor defended the §924(e) enhance-
ment on the merits. The United States thus has forfeited,
if it has not waived, any contention that the overall per-
formance of Buchmeier’s lawyer was adequate; it has
effectively consented to treating this collateral attack as
a rerun of the direct appeal. Given the parties’ litigating
positions, we proceed to examine the propriety of the
recidivist enhancement, without asking whether counsel
furnished ineffective assistance. That issue has never
been contested, and we cannot tell how things would
have come out on a complete analysis under Strickland.
No. 06-2958 3
Section 924(e) requires a lengthy sentence for anyone
who violates §922(g) after three convictions for violent
felonies or serious drug crimes. Section 924(e)(2)(B) lists
the offenses that count as violent felonies. Each must be
“punishable by imprisonment for a term exceeding one
year” and meet other conditions. One qualifying offense
is burglary, and Buchmeier has eight of these on his rap
sheet. He now maintains that they do not count because
of 18 U.S.C. §921(a)(20):
The term “crime punishable by imprisonment for
a term exceeding one year” does not include—
(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 business practices,
or
(B) any State offense classified by the laws of
the State as a misdemeanor and punishable
by a term of imprisonment 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 fire-
arms.
4 No. 06-2958
The hanging paragraph’s first sentence tells us that state
law governs “[w]hat constitutes a conviction”. This
countermands Dickerson v. New Banner Institute, Inc., 460
U.S. 103 (1983), which had held that federal law
defines “conviction” and that a diversionary disposition
in state court is one. The first sentence also means that a
pardon or automatic expungement under state law is
effective for federal purposes. The hanging paragraph’s
second sentence is a proviso to the first. It tells us that,
no matter what state law provides, a person who has
received a “pardon, expungement, or restoration of civil
rights” is not treated as convicted for federal purposes
“unless such pardon, expungement, or restoration of civil
rights expressly provides that the person may not
ship, transport, possess, or receive firearms.”
Buchmeier relies on the hanging paragraph’s second
sentence. When his state terms expired, and he was
released from all supervision, he received from the
Illinois Department of Corrections a notice (applicable to
all eight burglaries) reading:
We have been advised by the field services office of
the Stateville Correctional Center that you have
completed the maximum of your sentence as of
02/09/1994. On this date, your obligation to the
department ceases.
We are pleased to inform you of the restoration of
your right to vote and to hold offices created
under the constitution of the state of Illinois. You
also have the right to restoration of licenses
granted to you under the authority of the state of
No. 06-2958 5
Illinois if such license was revoked solely as a
result of your conviction, unless the licensing
authority determines that such restoration would
not be in the public interest.
Buchmeier contends that this notice is a “restoration of
civil rights” and that, because it does not provide that he
“may not ship, transport, possess, or receive firearms”,
none of the eight burglary convictions meets the defini-
tion of a “crime punishable by imprisonment for a term
exceeding one year”. With these eight convictions erased,
Buchmeier no longer has three convictions for violent
felonies and cannot properly be sentenced under §924(e)
as an armed career criminal.
Section 921(a)(20) does not say which civil rights, if
restored, cause a state conviction not to count. We con-
cluded in United States v. Williams, 128 F.3d 1128, 1134
(7th Cir. 1997), that three civil rights matter: the rights to
vote, to hold office, and to serve on juries. If these are
restored, then a conviction does not carry federal fire-
arms disabilities or support a §924(e) enhancement
“unless such pardon, expungement, or restoration of civil
rights expressly provides that the person may not ship,
transport, possess, or receive firearms.” The document
that Buchmeier received mentions only two of the three
civil rights; it is silent about jury service. As this civil right
has not been restored (at least, Buchmeier was not
told about its restoration), the district court held that the
eight burglary convictions still count for federal pur-
poses. In reaching this conclusion, it relied entirely
on United States v. Gillaum, 372 F.3d 848, 859–61 (7th Cir.
6 No. 06-2958
2004), which holds that, when a pardon, expungement, or
other restoration of rights omits one of the “big three” civil
rights, there is no need for a firearms reservation. In
Gillaum the notice said that “rights to vote and administer
estates are regained.” Nothing there about the right to
hold public office or to serve on juries, so Gillaum’s
convictions still counted for federal recidivist enhance-
ments.
It does not follow from Gillaum, however, that a notice
counts as a “pardon, expungement, or restoration of civil
rights” only if it mentions all three civil rights. Pardons
often are unconditional (“full, free, and absolute”); they
don’t mention any particular rights but come within
§921(a)(20) because they restore all civil rights, unless
they contain a reservation—and the second sentence of
the hanging paragraph says that a firearms reservation
must be mentioned expressly. More to the point, there is
no need to notify a defendant that a given civil right
has been restored, unless it was first taken away. A
felony conviction in Illinois suspends a person’s right to
vote and hold many public offices until the sentence
has expired; then these rights are restored automatically.
730 ILCS 5/5-5-5(b), (c). The right to serve on juries, by
contrast, is not suspended—though as a practical matter
it can’t be exercised while a person is in prison. The
notice Buchmeier received did not mention his right to
serve on juries, because he had never lost it. This means,
Buchmeier observes, that when his sentence ended he
could again exercise all three of the civil rights com-
monly lost with a felony conviction. And, as the notice
informing him of the rights’ restoration did not mention
No. 06-2958 7
a firearms disability, the eight burglary convictions are
removed from the federal calculus.
Logan v. United States, 128 S. Ct. 475 (2007), holds that, if
a person never loses any of the “big three” civil rights, then
they cannot be “restored” for the purpose of the hanging
paragraph’s second sentence. To restore means to give
back. Thus a person who never lost civil rights cannot
insist that he be treated the same as a person who lost
them, had them restored, and did not receive an “express”
warning that the right to possess firearms had not
been restored. But Buchmeier did lose civil rights; they
could be, and were, “restored” to him; and the document
announcing this restoration could have contained (but
lacked) a warning that he must not possess firearms.
Illinois law forbids felons to possess firearms, unless the
Director of the State Police grants a dispensation. 720 ILCS
5/24-1.1(a). Buchmeier’s convictions have not been set
aside, so this rule applies, though it was not mentioned
in the notice telling Buchmeier that his civil rights had
been restored.
Questioning by the panel at oral argument implied
to counsel that neither Logan nor Gillaum supports
Buchmeier’s §924(e) enhancement. And because, under
this circuit’s decisions, the “express” notice must be in
the document informing the convict of the pardon,
expungement, or restoration of civil rights, rather than
in the state’s statutes at large, the enhancement appeared
to be infirm. See, e.g., United States v. Erwin, 902 F.2d 510
(7th Cir. 1990); United States v. Glaser, 14 F.3d 1213, 1218
(7th Cir. 1994); Dahler v. United States, 143 F.3d 1084,
8 No. 06-2958
1086–87 (7th Cir. 1998); United States v. Vitrano, 405
F.3d 506, 509–10 (7th Cir. 2005). Four other circuits
agree with Erwin, though a further four disagree and
hold that an “express” firearms restriction anywhere in
the state’s statutes suffices for the hanging paragraph’s
second sentence. Compare United States v. Chenowith, 459
F.3d 635 (5th Cir. 2006); United States v. Gallaher, 275 F.3d
784 (9th Cir. 2001); United States v. Fowler, 198 F.3d 808
(11th Cir. 1999); and United States v. Bost, 87 F.3d 1333 (D.C.
Cir. 1996) (all following Erwin), with United States v.
McLean, 904 F.2d 216 (4th Cir. 1990); United States v.
Cassidy, 899 F.2d 543 (6th Cir. 1990); United States v.
Collins, 321 F.3d 691 (8th Cir. 2003); and United States v.
Burns, 934 F.2d 1157 (10th Cir. 1991). See also Logan, 128
S. Ct. at 482–83 n.4 (noting the conflict’s existence).
We gave counsel an opportunity to file post-argument
briefs to discuss whether this circuit should change
sides in the conflict. The United States filed a brief
asking us to overrule Erwin and its successors. The
panel prepared an opinion that was circulated to the
full court under Circuit Rule 40(e). A majority of the
judges in active service voted to hear the appeal en banc
in order to address the status of Erwin.
Overruling would not be consistent with a proper
regard for the stability of our decisions. Erwin was issued
19 years ago and, though its discussion of §921(a)(20)
can be characterized as dictum, its approach became a
holding at the first opportunity (Glaser) and has been
followed ever since. Precedents are not sacrosanct; we
have overruled many. But when the issue is closely bal-
No. 06-2958 9
anced (the 5 to 4 division among the circuits reveals at
least that much), there is less reason to think that a shift
will undo rather than create an error. What is more, no
circuit can resolve the question with finality. Only Con-
gress or the Supreme Court can accomplish that. When
one circuit’s overruling would convert a 5–4 conflict into
a 4–5 conflict, it is best to leave well enough alone. As
so often, it is better that the question “be settled, than
that it be settled right.” John R. Sand & Gravel Co. v. United
States, 128 S. Ct. 750, 757 (2008), quoting from Burnet v.
Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis,
J., dissenting). “To overturn a decision settling one such
matter simply because we might believe that decision is
no longer ‘right’ would inevitably reflect a willingness to
reconsider others. And that willingness could itself
threaten to substitute disruption, confusion, and uncer-
tainty for necessary legal stability.” 128 S. Ct. at 757.
Any one circuit’s restless movement from one side of a
conflict to another won’t reduce the workload of the
Supreme Court. Yet changing sides in one conflict will
telegraph a propensity to change sides in others, and
that message will induce conscientious lawyers to argue
for overruling of circuit precedent whenever there is a
conflict. Almost all such requests will prove to be unavail-
ing—for, even apart from stare decisis, the fact that a
court has reached a conclusion once implies that it will do
so again. Litigants rarely would benefit by diverting
lawyers’ time away from arguments that make the best
of circuit law and toward arguments for a change in
circuit law. That’s why it takes more than argument that a
decision is mistaken to justify overruling. See Tate v.
10 No. 06-2958
Showboat Marina Casino Partnership, 431 F.3d 580 (7th Cir.
2005).
Overruling circuit law can be beneficial when the circuit
is an outlier and can save work for Congress and the
Supreme Court by eliminating a conflict. Even when an
overruling does not end the conflict, it might supply a
new line of argument that would lead other circuits to
change their positions in turn. Finally, overruling is
more appropriate when prevailing doctrine works a
substantial injury. None of these indicators is present,
however. A 5–4 conflict will remain no matter what we
do. The United States has not produced a new argument;
it simply asks us to agree with a position that was first
articulated by the sixth circuit in 1990, and that five
circuits already have found wanting. And no one con-
tends that Erwin causes a serious, ongoing harm; quite
the contrary, its understanding of §921(a)(20) protects
people who might be snookered, by material omissions
from governmental documents, into believing that they
are entitled to possess firearms.
Erwin and its successors treat the second sentence of the
hanging paragraph as an anti-mousetrapping provision.
On this view the hanging paragraph’s first sentence
refers to state law for the basic definition of a “conviction,”
while the second sentence is a federal proviso: Even if a
state deems a person “convicted” for purposes of its
domestic law, if it sends a document that seems to restore
all civil rights the conviction does not count for federal
purposes unless the document warns the person about a
lingering firearms disability. That is not the only possible
No. 06-2958 11
reading; four circuits treat the second sentence as an
extension of the first sentence’s reference to state law,
and they look for the “express” reservation not in a docu-
ment sent to the convicted person but in the whole of
the state’s statutes. Having given the view of these four
circuits a fresh look, we do not think that Erwin is so
clearly wrong that it must be interred despite the pruden-
tial considerations we have mentioned.
If, as the prosecutor contends, a judge must look to the
whole of state law, why does the statute tell us to inquire
what “such pardon, expungement, or restoration of civil
rights expressly provides”? A “pardon” or “restoration of
civil rights” differs from “the entirety of state law.” Many
states remove some convictions from a person’s record,
or restore some civil rights, after the passage of time,
without the need for a pardon or other special dispensa-
tion. If a state does this without sending the ex-prisoner a
notice, then the final sentence of §921(a)(20) does not
require a firearms reservation; there is no document in
which the reservation would be included, no risk that
the ex-prisoner will be misled into thinking that he is
entitled to possess firearms. But when the state does
send a document saying that civil rights have been re-
stored, there is a potential for misunderstanding unless
the document “expressly provides that the person may
not ship, transport, possess, or receive firearms.” Erwin
gives effect to the entirety of the statute’s final sentence;
the prosecutor’s approach does not, treating the
sentence as if it read: “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
12 No. 06-2958
considered a conviction for purposes of this chapter,
unless [state law] expressly provides that the person
may not ship, transport, possess, or receive firearms.”
Replacing “such pardon, expungement, or restoration of
civil rights” with “state law” changes the meaning.
Illinois sent Buchmeier a poorly written document. It
neglected to inform him that, though the expiration of
his sentence restored his rights to vote and hold “con-
stitutional” offices such as Governor, other rights, includ-
ing entitlement to possess firearms, were not restored.
The notice also did not mention that Illinois does not
automatically restore a felon’s right to hold statutory
offices, such as mayor. But the United States has not
argued that this omission is significant, so we need not
decide whether a firearms reservation is essential in a
notice announcing the restoration of the civil right to
hold constitutional, but not statutory, public offices.
If someone asks Buchmeier “have you been convicted
of a felony?” he must answer “yes”; restoration of civil
rights differs from expungement as a matter of Illinois
law. But because the state sent Buchmeier a document
stating that his principal civil rights have been restored,
while neglecting to mention the continuing firearms
disability, the final sentence of §921(a)(20) means that
his burglary convictions do not count for federal pur-
poses. He is entitled to be resentenced.
V ACATED AND R EMANDED
No. 06-2958 13
S YKES, Circuit Judge, with whom M ANION, E VANS, and
T INDER, Circuit Judges, join, dissenting. Shane Buchmeier
served time in an Illinois prison for eight felony
burglary convictions and successfully completed a term
of parole supervision. Six months later he purchased
several guns stolen from the home of an unsuspecting
vacationer. For this he was convicted in federal court of
two counts of possession of a firearm by a felon, see
18 U.S.C. § 922(g)(1), and two counts of receiving stolen
firearms, see id. § 922(j). As my colleagues explain,
Buchmeier’s sentence was enhanced under the Armed
Career Criminal Act (“ACCA”) based on his Illinois
burglary convictions; his sentence of 188 months was
eight months longer than the mandatory minimum
under the ACCA and well above the advisory sen-
tencing guidelines range that would have applied if his
burglary priors weren’t counted. After losing his direct
appeal, he brought this collateral attack under 28 U.S.C.
§ 2255 claiming his lawyer was ineffective for failing
to challenge the application of the ACCA recidivist en-
hancement.
The ACCA mandates a prison term of not less than
fifteen years for a felon who possesses a firearm after
accumulating three or more convictions for a serious
drug offense or a violent felony. See 18 U.S.C. § 924(e)(1).
A “violent felony” is a crime that: (1) is “punishable
by imprisonment for a term exceeding one year,” id.
§ 924(e)(2)(B); and (2) has certain other, specific qualifying
characteristics relating to the use of physical force or
risk of physical injury to a person, see id. § 924(e)(2)(B)(i),
(ii). Buchmeier’s burglary convictions qualify as violent
14 No. 06-2958
felonies. See id. § 924(e)(2)(B)(ii). But not every felony
conviction that otherwise qualifies under § 924(e)(2)(B)
counts—either for the enhanced penalties laid out in
§ 924(e)(1) or for a substantive felon-in-possession offense
under § 922(g)(1), which also uses the “term exceeding
one year” definition of “felony.” This case concerns the
exemption contained in § 921(a)(20):
The term “crime punishable by imprisonment for
a term exceeding one year” does not include—
(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 business practices,
or
(B) any State offense classified by the laws of
the State as a misdemeanor and punishable
by a term of imprisonment 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 considered 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.
18 U.S.C. § 921(a)(20) (emphasis added).
No. 06-2958 15
Subsections (A) and (B) of § 921(a)(20) exclude certain
types of crimes and are not at issue here. The first sentence
of the hanging paragraph after subsections (A) and (B)
straightforwardly tells us to use the law of the convicting
jurisdiction (state or federal) to determine whether a
particular conviction counts. The second sentence of that
paragraph—exempting convictions that have been ex-
punged or for which a person has been pardoned or has
had civil rights restored—is less clear and has spawned
conflicting interpretations among the circuit courts.
Buchmeier’s argument rests on the “unless” clause of the
second sentence.
As my colleagues note, this circuit has read the “unless”
clause in the second sentence as a “notice” or “anti-
mousetrapping” provision. See, e.g., United States v.
Vitrano, 405 F.3d 506, 509-10 (7th Cir. 2005); United States v.
Gillaum, 372 F.3d 848, 860-61; Dahler v. United States,
143 F.3d 1084, 1086-87 (7th Cir. 1998); United States v.
Glaser, 14 F.3d 1213, 1218 (7th Cir. 1994); United States v.
Erwin, 902 F.2d 510, 512 (7th Cir. 1990). On this under-
standing, if the jurisdiction of conviction—in most cases
a state—issues a certificate or other notice to the
offender announcing a pardon, expungement, or restora-
tion of his civil rights, the contents of the certificate or
notice control the question whether the exemption ap-
plies. That is, in cases in which the defendant
received documentary notice of a restoration of his civil
rights, we have looked no further than the document
itself to determine whether the offender’s civil rights
have been restored and, if so, whether the notice con-
tained a reference to a continuing firearms prohibition.
16 No. 06-2958
This “notice” interpretation of § 921(a)(20) first appeared
in Erwin, 902 F.2d 510, which concerned the question
“whether a felon whose ‘civil rights’ were restored auto-
matically at the end of his sentence—but who under
state law may not own a gun—stands convicted of a
crime for purposes of 18 U.S.C. § 921(a)(20).” Id. at 511.
Erwin argued that an Illinois statute that suspends the
right to vote for prison inmates and forbids felons from
holding some state offices until they have completed
their sentence unwound his status as a convicted felon
for federal purposes even though Illinois still considered
him a felon and elsewhere in its statutes prohibited felons
from possessing guns. Id. at 512. Erwin reasoned that
the statute that restored his civil rights automatically
did not in the same text expressly prohibit him from
possessing a firearm, so the “unless” clause of § 921(a)(20)
wasn’t triggered. Id. We thought this was too great a
stretch for a federal statute “that is designed to require
federal rules to track state law.” Id. We offered this ex-
planation:
When state law deems a person convicted, that is
dispositive for federal purposes under the first
sentence of § 921(a)(20). United States v. Cassidy, 899
F.2d 543 (6th Cir. 1990). The second sentence [of
§ 921(a)(20)] does not require a federal court
to disregard the state’s definition of a conviction
just because the state has restored any one civil
right. . . . The second sentence of § 921(a)(20) is an
anti-mousetrapping 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
No. 06-2958 17
restored, a reservation in a corner of the state’s
penal code can not be the basis of a federal prose-
cution. A state must tell the felon point blank that
weapons are not kosher. The final sentence of
§ 921(a)(20) can not logically mean that the state
may dole out an apparently-unconditional re-
storation of rights yet be silent so long as any
musty statute withholds the right to carry guns.
Then the state never would need 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, else § 922(g) does not apply. To the
extent Cassidy suggests otherwise, at 545 n. 5, we
have doubts, although the question need not be
resolved today. When, however, the state sends
no document granting pardon or restoring rights,
there is no potential for deception, and the ques-
tion becomes whether the particular civil right to
carry guns has been restored by law. . . . Illinois
does not allow Erwin to possess guns, and that
is that.
Id. at 512-13.
Erwin did not involve a state-issued notice, so this anti-
mousetrapping discussion was dicta. In United States v.
Glaser, 14 F.3d at 1215-16, however, we returned to the
subject in a case where there was a notice. Glaser
involved a felon who had twice received a state-issued
document notifying him of the return of “all civil rights
and to full citizenship, with full right to vote and hold
18 No. 06-2958
public office, the same as if such conviction had not
taken place.” Id. at 1215. By state statute, however, he
remained under a firearms disability. We repeated our
explanation from Erwin that typically “it is necessary to
examine the whole of state statutory law to determine
whether the state treats [a felon] as ‘convicted’ for the
purpose of possessing firearms.” Id. at 1218. We went on,
however, to elevate the anti-mousetrapping dictum from
Erwin to a holding: “When the state gives the person
a formal notice of the restoration of civil rights, . . . the
final sentence of § 921(a)(20) instructs us to look, not at
the contents of the state’s statute books but at the
contents of the document.” Id. Because the written
notices Glaser received announced that his civil rights
were restored but omitted any reference to the
statutory firearms prohibition, his prior convictions
did not count for ACCA purposes. Id. at 1218-19.
Three months later, in United States v. McKinley, 23
F.3d 181, 183 (7th Cir. 1994), we identified the rights to
vote, to hold public office, and to serve on a jury as the
“civil rights” contemplated by § 921(a)(20); the loss or
return of other privileges is irrelevant. See also United
States v. Williams, 128 F.3d 1128, 1134-35 (7th Cir. 1997);
Roehl v. United States, 977 F.2d 375, 377-78 (7th Cir. 1992).
Glaser and Erwin worried about felons being mouse-
trapped by an “apparently unconditional” docu-
ment—with language, as in Glaser, that communicates the
restoration of all civil rights. See also Dahler, 143 F.3d at
1086-88. Extrapolating from McKinley and Williams, we
held in Gillaum that a state-issued document does not
implicate the mousetrap principle if it tells the recipient
No. 06-2958 19
he has regained fewer than all three core civil rights: the
rights to vote, to hold public office, and to serve on a jury.
372 F.3d at 860-62.
On the strength of these precedents, Buchmeier claimed
in his § 2255 petition that he was mousetrapped. The
document he received upon his discharge from parole
mentioned the restoration of certain civil rights but con-
tained no express notice of a firearms prohibition. He
did not suggest that he was actually deceived by the
document or that Illinois no longer considers him a
felon—for purposes of its firearms prohibition or other-
wise. He argued instead that the discharge document
removed his burglary convictions from consideration
under § 921(a)(20) and he has no others. In response the
government asserted that the document Buchmeier
received evidenced only a partial restoration of civil
rights and thus could not have mousetrapped him. The
notice merely alerted him that he had regained his
rights to vote and to hold certain offices, nothing more.
Therefore, the government argued, Buchmeier’s circum-
stances were not the same as the unwary felon who
learns through a state-issued document that all of his civil
rights (or even just the three core rights) have been re-
stored. See, e.g., Dahler, 143 F.3d at 1086-88 (applying
Erwin and Glaser).
The district court sided with the government and
denied Buchmeier’s § 2255 motion. Relying heavily on
Gillaum, 372 F.3d at 859-61, the court concluded that the
recipient of a document telling him that rights lost upon
conviction have been regained cannot be mousetrapped
20 No. 06-2958
or misled into believing he may possess firearms unless
the document communicates, at a minimum, the return
of the rights to vote, to hold public office, and to serve
on a jury. And, the court reasoned, just as the document
received by the defendant in Gillaum told him that he
had regained fewer than the three core civil rights (in
that case, only the right to vote), so too did Buchmeier’s
document fail to trigger the § 921(a)(20) exemption
because it “restored” only his rights to vote and hold
certain offices but not his right to serve on a jury.
Buchmeier appealed, reiterating his argument that the
document he received after completing his parole “sub-
stantially restored” his civil rights but did not contain
a firearms warning and for that reason he should not
have been sentenced as an armed career criminal. 1
1
Buchmeier’s argument has a much wider reach than he seems
to appreciate. If, as Buchmeier contends, his Illinois burglary
convictions do not satisfy § 921(a)(20)’s definition of a felony
conviction, he would not be subject to the fifteen-year
mandatory-minimum sentence of § 924(e)(1). But the same
basic definition of a felony (a “crime punishable by imprison-
ment for a term exceeding one year”) also governs § 922(g)(1)
(prohibiting a felon from possessing a firearm). See Logan v.
United States, 128 S. Ct. 475, 479 (2007); Caron v. United States, 524
U.S. 308, 312 (1998); Roehl, 977 F.2d at 378. Understood in this
light, Buchmeier’s petition is not just a challenge to his designa-
tion as an armed career criminal, but more fundamentally a
collateral attack on his § 922(g)(1) convictions. See Roehl, 977
F.2d at 378; see also United States v. Chenowith, 459 F.3d 635, 636-
(continued...)
No. 06-2958 21
He noted first that the document explicitly states that
his right to vote had been restored. See 730 ILL. C OMP.
S TAT. 5/5-5-5(c) (2008) (“A person sentenced to impris-
onment shall lose his right to vote until released
from imprisonment.”). As for his right to hold public
office, Buchmeier observed that the document also
states that he regained his right to “hold offices created
under the Constitution of the State of Illinois.” Though
at first blush this description of the offices he could
hold suggests only a partial restoration—there are
nonconstitutional elective offices in Illinois—Buchmeier
argued that under state law he lost only the right to
hold the offices alluded to in the document. Similarly,
Buchmeier argued that he never lost his right to serve on
a jury under Illinois law, see 730 ILL. C OMP. S TAT. §§ 5/5-5-
5(a), 305/2(b), and thus “restoration” of that right was
both impossible and unnecessary.
The government maintained, as it did in the district
court, that “Buchmeier’s letter was not a mousetrap”
because “[t]he restoration of certain, but not all, rights, by
letter or by statute, is insufficient to trigger the protec-
tions of 18 U.S.C. § 921(a)(20).” Buchmeier’s document
also conveyed that state-licensing authorities would
have to decide independently whether he should regain
“licenses granted . . . under the authority of the State of
1
(...continued)
40 (5th Cir. 2006); United States v. Nix, 438 F.3d 1284, 1285-88
(11th Cir. 2006); United States v. Leuschen, 395 F.3d 155, 156-60
(3d Cir. 2005).
22 No. 06-2958
Illinois if such license was revoked solely as a result of
your conviction,” and that requirement, according to
the government, demonstrates that “Buchmeier’s letter
could not have lulled him into the misapprehension that
all of his rights had been restored.” As for Buchmeier’s
argument about the rights he never lost, the government
argued that Logan v. United States, 128 S. Ct. 475 (2007),
decided after this case was briefed but before oral argu-
ment, is controlling. As my colleagues note, Logan held
that the § 921(a)(20) exemption “does not cover the case
of an offender who retained civil rights at all times, and
whose legal status, postconviction, remained in all
respects unaltered by any state dispensation.” Id. at 479.
With his theory of mousetrapping by a document
announcing “substantial” restoration of civil rights,
Buchmeier essentially invites us to extend the reach of
Erwin and Glaser—that is, to extend the anti-mouse-
trapping doctrine to cover every felon who receives a
document telling him not that all civil rights have
been regained, but that less than all of the core rights
lost have been reinstated and where (at least) one was
never lost in the first place. But to know which core
rights were lost and which not, Buchmeier must turn to
state law; his document says nothing about his rights to
serve on a jury or hold nonconstitutional office. At this
point the mousetrapping theory falls apart: If a felon has
to consult state statutes to determine whether certain
core rights were always or are presently intact, why
not look up gun privileges as well? The parties’ labyrin-
thine arguments test the premise of our anti-
mousetrapping doctrine and illustrate just how compli-
No. 06-2958 23
cated its application can be. This suggests to me that
fresh scrutiny of our interpretation of § 921(a)(20) is
appropriate.
But first, it makes sense to note the genesis of the
circuit split on the § 921(a)(20) exemption. The Sixth
Circuit was the first to speak on this subject in United
States v. Cassidy, 899 F.2d 543 (6th Cir. 1990). After dis-
charging a state sentence in 1984 for trafficking in mari-
juana, Calvin Cassidy received a “Restoration to Civil
Rights” certificate from the Ohio Adult Parole Authority.
Id. at 544. That certificate documented the return of
“the rights and privileges forfeited by [his] conviction;
namely the right to serve on juries and to hold office of
honor, trust, or profit.” Id. (alteration in original). Five
years later Cassidy was charged in federal court with
possessing a firearm following a felony conviction, see
18 U.S.C. § 922(g)(1), and making a false statement to a
firearms dealer, see id. § 922(a)(6). Cassidy, 899 F.2d at
544. The district court dismissed the indictment after
holding that Cassidy’s certificate constituted a “restoration
of civil rights” and that under § 921(a)(20) his status as
a convicted felon for § 922(g)(1) purposes was wiped out.
Id. at 545.
On appeal the Sixth Circuit observed that “[i]t was the
unmistakable intent of Congress to eliminate the
disabling effect of a felony conviction when the state of
conviction has made certain determinations, embodied
in state law, regarding a released felon’s civil rights and
firearms privileges.” Id. at 546. The harder question, the
court wrote, is “whether Congress intended that a
24 No. 06-2958
court look only to the document, if any, tendered to a
felon upon release to determine whether his civil rights
have been restored and whether there is an express limita-
tion upon his firearms privileges.” Id. After reviewing
the legislative history, the court concluded that “[i]t
would frustrate the intent of Congress . . . to focus solely
upon the document transferred to the convict upon
release.” Id. at 548. “The intent of Congress,” the court
explained, “was to give effect to state reforms with
respect to the status of an ex-convict. A narrow inter-
pretation requiring that we look only to the document,
if any, evidencing a restoration of rights, would frustrate
the intent of Congress that we look to the whole of state
law, including state law concerning a convicted felon’s
firearms privileges.” Id. Accordingly, the court held that
if a “convicted felon” has his civil rights restored
by operation of state law, with or without a certifi-
cate or order documenting the event, we must
look to the whole of state law of the state of convic-
tion to determine whether the “convicted felon” is
entitled to vote, hold public office and serve on a
jury and also whether the “convicted felon” is
entitled to exercise the privileges of shipping,
transporting, possessing or receiving a firearm.
Id. at 549.
Erwin was a response to Cassidy. We disagreed with
Cassidy’s insistence on reference to the whole of state
law in the face of a written notice, concluding that
“[t]he final sentence of § 921(a)(20) can not logically
mean that the state may dole out an apparently-uncondi-
No. 06-2958 25
tional restoration of rights yet be silent so long as any
musty statute withholds the right to carry guns.” Erwin,
902 F.2d at 513. That disagreement proliferated; as my
colleagues note, the circuits are sharply divided on
whether the “unless” clause of § 921(a)(20) implicates
review of the whole of state law 2 or only the certificate of
discharge or other notice of an offender’s pardon,
expungement, or restoration of civil rights. Compare
United States v. Chenowith, 459 F.3d 635, 639-40 (5th Cir.
2006); United States v. Gallaher, 275 F.3d 784, 791-93 (9th Cir.
2001); United States v. Fowler, 198 F.3d 808, 811 (11th Cir.
1999); and United States v. Bost, 87 F.3d 1333, 1336-38 (D.C.
Cir. 1996), with United States v. Collins, 321 F.3d 691, 698
(8th Cir. 2003); United States v. Burns, 934 F.2d 1157, 1160
(10th Cir. 1991); United States v. McLean, 904 F.2d 216, 218
(4th Cir. 1990); and Cassidy, 899 F.2d at 549. In Logan the
Supreme Court noted the circuit split but took no posi-
tion on it. 128 S. Ct. at 482 n.4.
Let me pause here to address the institutional concerns
raised by my colleagues. I take the force of stare decisis
seriously and have carefully considered the systemic
reasons the majority has advanced against side-switching
in a deep and persistent circuit conflict like this one.
I am convinced, however, that our anti-mousetrapping
2
The statute speaks in terms of the law of the convicting
jurisdiction, which can be state or federal. The cases inter-
preting § 921(a)(20) have been chiefly concerned with state
convictions, so for simplicity I will refer to the whole of “state
law” but do not mean to disregard the federal possibility.
26 No. 06-2958
interpretation of § 921(a)(20) is mistaken. Beyond that
(and I accept that something more should be required to
overrule circuit precedent, see Tate v. Showboat Marina
Casino P’ship, 431 F.3d 580, 582-83 (7th Cir. 2005)), our
interpretation effectively ascribes a fluctuating meaning
to the “unless” clause in the statute: It means one thing
when the offender was provided a written notice of his
dispensation and can produce it for the court, and some-
thing else when he did not receive written notice or
received a notice but cannot produce it for the court (say,
because he lost it or the state didn’t retain a copy of it).
In the first set of circumstances, the phrase “pardon,
expungement, or restoration of civil rights” means “the
notice,” and in the second set of circumstances, the
same phrase means “state law.”
Moreover, our focus on the notice has produced
vexing subsidiary questions present in this and other
cases: What if the offender’s notice mentions some but
not all of the “big three” civil rights? What if some of
those not mentioned as “restored” were not lost in the
first place—or were only partially lost—under state law?
What if the “restoration” happens automatically, in
whole or in part, and (as appears to be the case here)
the notice has no legal effect whatsoever? Where (as here)
these questions are present, the phrase “pardon,
expungement, or restoration of civil rights” in the “unless”
clause appears to have a third meaning: it means “the
notice” and “state law,” read together—except that when
it comes to the question of a continuing firearms
disability, the notice trumps state law. With respect, an
interpretation that produces such variable meanings
has proven itself unworkable.
No. 06-2958 27
I think it’s time to start over. And doing so brings me
to the conclusion that our anti-mousetrapping interpreta-
tion of § 921(a)(20) improperly elevates the contents of
the documentary notice over the requirements of state
law. The hanging paragraph of § 921(a)(20) contains two
explicit directives. One is that “[w]hat constitutes a con-
viction” for purposes of an ACCA or felon-in-possession
predicate “shall be determined in accordance with the
law of the [convicting] jurisdiction.” The other is that a
conviction that “has been expunged, or set aside or for
which a person has been pardoned or has had civil rights
restored” is exempt from consideration “unless such
pardon, expungement, or restoration of civil rights ex-
pressly provides that the person may not ship, transport,
possess, or receive firearms.” The first sentence is a choice-
of-law provision; it tells us to use state law to deter-
mine the effect of a state conviction for ACCA and
§ 922(g)(1) purposes. The second sentence tells us to
exclude any conviction that has been expunged or for
which the offender has been pardoned or has had
civil rights restored unless the terms of the pardon,
expungement, or restoration “expressly” include a re-
striction on possession of firearms. The applicability of
the exemption thus appears to depend upon the
offender’s legal status following a pardon, expungement,
or restoration of civil rights: Does the state still “expressly”
consider him a felon subject to a continuing firearms
disability or not?
Notably, the text of § 921(a)(20) nowhere mentions
notice; that was entirely our gloss. True, the statute is
awkwardly phrased; the use of the word “such”—as in
28 No. 06-2958
“such pardon, expungement, or restoration of civil
rights”—can be read to suggest reference to a “thing” (e.g.,
a certificate or notice) rather than the terms of the of-
fender’s dispensation. But it reads too much into
that awkward phrasing to conclude that the contents of
a state-issued notice trump the requirements of state
law where there is a conflict between the two; nothing
else in the statute suggests that the operation of the
“unless” clause turns on the accuracy of the notice the
state gives to the offender.
Instead, when read together and harmonized, the two
sentences of the hanging paragraph instruct us to deter-
mine the terms of a pardon, expungement, or restoration
of civil rights by reference to the whole of state law, not
the document the state used to notify the offender of
his pardon, expungement, or restoration of civil rights.
The document is evidence of the offender’s change in
legal status; the terms of that change in legal status are
found in state law. Read as a whole, the statute calls for
an inquiry into the effect of a pardon, expungement, or
restoration of civil rights on the offender’s state-law
firearms restriction. That inquiry turns on the require-
ments of state law, not the contents of the notice or docu-
ment the state uses to communicate a pardon,
expungement, or restoration of civil rights.
Without the “notice” gloss, the text of § 921(a)(20)
contains the following command: If a prior conviction
has been expunged or the offender has been pardoned
or has had his civil rights restored, then the conviction
may not be counted as an ACCA or felon-in-possession
No. 06-2958 29
predicate unless state law “expressly provides” that the
offender remains under a firearms disability. If state
law does “expressly provide” that the offender remains
under a firearms disability notwithstanding his receipt of
a pardon, expungement, or restoration of civil rights,
then the exemption is inapplicable and the conviction
counts; the offender remains a felon for federal purposes
despite the pardon, expungement, or restoration of civil
rights. Put more succinctly, if state law expressly retains
the firearms disability after a pardon, expungement, or
restoration of civil rights, the conviction counts; if state
law removes the firearms disability upon a pardon,
expungement, or restoration of civil rights, the convic-
tion does not count.
This reading is consistent with the Supreme Court’s most
recent pronouncement on § 921(a)(20). In Logan the
Court said the chief purpose of § 921(a)(20) is federal
deference “to a State’s dispensation relieving an
offender from [the] disabling effects of a conviction.”
128 S. Ct. at 485. The scope of that dispensation is deter-
mined by reference to state law, not the contents of a state-
issued document announcing the dispensation. The
document may perform a notice function (in some cases
perhaps imperfectly so), but it does not dictate the scope
or terms of the dispensation; that is controlled by the
pertinent provisions of state law. Our anti-mouse-
trapping approach has the effect of deferring not to the
actual legal terms of a state’s dispensation but to the
possibility that an individual felon might mistakenly
believe, based on the contents of a discharge notice, that
his firearms privileges were restored. This ignores state
30 No. 06-2958
law, rather than defers to it, simply because a written
notice was sent. See Caron v. United States, 524 U.S. 308,
313 (1998) (“Nothing in the text of § 921(a)(20) requires
a case-by-case decision to restore civil rights to this par-
ticular offender.”). Our interpretation of the “unless”
clause makes the offender’s status for purposes of
§ 922(g)(1) and the ACCA turn on fortuities: the vagaries
of sentence-discharge practices among state corrections
officials and the diligence of an individual offender’s
recordkeeping.
For these reasons, I am persuaded that our prior inter-
pretation of the “unless” clause in § 921(a)(20) was incor-
rect. The statute embodies not a “warning” or anti-
mousetrapping principle but a state-law deference princi-
ple. The applicability of the § 921(a)(20) exemption
for convictions that have been expunged or for which
the offender has been pardoned or has had civil rights
restored is determined by reference to the whole of
state law, not the contents of a state-issued document
announcing the offender’s change in legal status. If state
law “expressly provides” that the offender may not
“ship, transport, possess, or receive firearms” despite
having received a pardon, expungement, or restoration
of civil rights, then the “unless” clause is satisfied, the
§ 921(a)(20) exemption does not apply, and the convic-
tion counts as an ACCA and felon-in-possession predi-
cate. I would withdraw Erwin’s anti-mousetrapping
language and overrule Glaser, which adopted that inter-
pretation of the statute as the law of this circuit.
As for Buchmeier, Illinois law prohibits convicted felons
from possessing firearms, see I LL. C OMP. S TAT. 5/24-1.1(a),
No. 06-2958 31
and this prohibition applies notwithstanding the restora-
tion of some of his civil rights upon completion of his
sentence for the eight burglaries. Accordingly, I would
hold that the § 921(a)(20) exemption does not apply,
and his burglary convictions were properly counted for
purposes of his § 922(g)(1) convictions and his enhanced
sentence under the ACCA. Therefore, I must respectfully
dissent.
9-10-09