United States v. Michael Adams

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3707
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ICHAEL A DAMS,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 11-10037-001—James E. Shadid, Chief Judge.
A RGUED S EPTEMBER 20, 2012—D ECIDED O CTOBER 19, 2012
Before E ASTERBROOK, Chief Judge, and M ANION and
T INDER, Circuit Judges.
E ASTERBROOK, Chief Judge. Federal law makes it a
crime for a felon to possess a firearm that has traveled
in interstate commerce, 18 U.S.C. §922(g), and Michael
Adams has been convicted of violating that statute. He
was sentenced to 15 years’ imprisonment as an armed
career criminal, see 18 U.S.C. §924(e), after the district
court concluded that four of his earlier convictions
2 No. 11-3707
were for “violent felonies” punishable by a year or more
in prison. Adams concedes that two of the four qualify
but contends that the other two do not, given 18 U.S.C.
§921(a)(20), which provides that a restoration of civil
rights causes a conviction to be disregarded for fed-
eral felon-in-possession statutes. Treatment as an armed
career criminal depends on three qualifying prior
felony convictions, and Adams contends that he should
be resentenced without the enhancement under §924(e).
The two convictions on which Adams maintains that
his civil rights have been restored arose from robberies
in 1981 and 1982. He was sentenced by an Illinois court
to 180 days in jail plus three years’ probation for the
1981 armed robbery; he committed the second robbery
while on probation from the first. That crime led to the
revocation of his probation plus new convictions for
robbery and aggravated battery. His total sentence
was four years in prison; he was paroled on August 20,
1984. He promptly violated the terms of his parole,
leading to its revocation. He was re-paroled in Decem-
ber 1984 and committed another armed robbery in Janu-
ary 1985. This time the court sentenced him to
25 years in prison. While confined, Adams committed
his fourth violent felony: aggravated battery of a guard.
He had not been out for long when he was caught with
a firearm, leading to this federal conviction.
In 1981 and 1982 Illinois law provided that felons lost
their right to possess firearms for the duration of their
confinement plus five years (or for five years from the
date of conviction, if the sentence did not include incar-
No. 11-3707 3
ceration). 38 Ill. Rev. Stat. ¶¶ 24–1(b), 24–3.1 (1975 ed.).
Had these laws remained in force, Adams could have
regained his right to possess firearms on August 20,
1989. Illinois automatically restores other civil rights,
including the rights to vote and hold public office, fol-
lowing release from prison. A blanket restoration of all
civil rights, including the right to possess firearms,
means that the state conviction no longer establishes
a federal firearms disability. Section 921(a)(20) provides:
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 prac-
tices, 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 par-
doned 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.
4 No. 11-3707
This language was designed to provide a compre-
hensive definition but has been troublesome in practice,
given the many different state approaches to the restora-
tion of civil rights. See, e.g., Buchmeier v. United States,
581 F.3d 561 (7th Cir. 2009) (en banc); United States
v. Burnett, 641 F.3d 894 (7th Cir. 2011); United States v.
Logan, 453 F.3d 804 (7th Cir. 2006), affirmed, 552 U.S. 23(2007). The problem in this case stems from the fact
that Illinois changed its law after Adams was convicted
of the crimes he committed in 1981 and 1982.
In 1984 Illinois repealed the statutes that had allowed
criminals to possess firearms beginning five years after
their release from prison. Since July 1, 1984, when the
repeal took effect, a felon may possess firearms lawfully
only after receiving express permission from the Director
of the Illinois State Police. 720 ILCS 5/24–1.1(a). The
state judiciary has held that the 1984 legislation
applies to persons whose convictions predate it. People v.
McCrimmon, 150 Ill. App. 3d 112, 115–16 (2d Dist. 1986).
Adams did not seek the Director’s permission. As a matter
of state law, then, his civil right to possess firearms has not
been restored, and §921(a)(20) counts the 1981 and 1982
convictions. So we held in Melvin v. United States, 78
F.3d 327 (7th Cir. 1996), and United States v. Walden,
146 F.3d 487 (7th Cir. 1998). Both of those decisions
reject the argument that applying the 1984 legislation to
pre-1984 convictions is impermissibly retroactive.
This case shows why. Under the older law, Adams
would have regained his right to possess firearms five
years after his release from prison had he avoided com-
No. 11-3707 5
mitting new crimes. But even before his release in
August 1984 the law had been changed. Thus when 1989
arrived Adams did not regain a right to possess fire-
arms. It is not as if Illinois had restored that right (va-
porizing the conviction for the purpose of §921(a)(20))
and then taken it away again. We could understand an
argument that, as a matter of federal law, a conviction
that ceases to count under §921(a)(20), say because the
felon is pardoned, is not restored to “conviction” status
when state law changes. But Adams’s convictions have
counted continuously, because Illinois law changed
long before August 20, 1989. And that’s not all. When
August 20, 1989, arrived, Adams was in prison again.
His right to possess firearms would not have been
restored even under the pre-1984 version of Illinois
law. Since his conviction in 1981, Adams has not
spent any five-year span out of prison. He has not spent
even five consecutive months out of prison.
Nonetheless, Adams contends that we should overrule
Melvin and Walden. He says that the change in state law
confused him about his entitlement to possess firearms.
One function of §921(a)(20) is preventing a state from
mousetrapping a convict by telling him that all civil
rights have been restored while concealing a legal rule
that blocks felons from possessing firearms. See, e.g.,
United States v. Erwin, 902 F.2d 510 (7th Cir. 1990), reaf-
firmed en banc in Buchmeier. These decisions interpret
the last clause of the statute’s final section: “unless
such pardon, expungement, or restoration of civil
rights expressly provides that the person may not ship,
transport, possess, or receive firearms.” Buchmeier, Burnett,
6 No. 11-3707
Erwin, and other cases understand that language
to deal with missing, or potentially misleading,
language in documents communicating the pardon,
expungement, or restoration of rights. Adams did not
receive from the State of Illinois any document telling
him that all civil rights had been restored, while omitting
a firearms proviso. We deal not with confusing language
in a document sent to Adams, but with clear language
in state statutes.
Adams insists that Caron v. United States, 524 U.S. 308(1998), holds that there is no difference between restora-
tion of civil rights by document and restoration as a
matter of law. That is not what Caron says, however. The
question in Caron was whether a felon who, as a matter
of state law, could possess some firearms, but not all
firearms, must be treated under §921(a)(20) as a person
whose civil rights have been restored. The Court held
that only entitlement to possess all firearms restores
civil rights and cause the state conviction to be disre-
garded for federal purposes.
Caron neither says nor implies that advice contained
in a pardon or other communication sent directly to a
felon is treated (for federal purposes) exactly the same
as the content of the state’s statute books. The opinion
does say, 524 U.S. at 313, that restoration of civil
rights by operation of law must be given effect under
§921(a)(20). Thus we know that a pardon (or other docu-
ment) is not the only way to take a state conviction out
of the picture for federal felon-in-possession statutes.
But the opinion does not say that only state legislation
No. 11-3707 7
in effect on the date of the conviction matters, and that
the state law as it is on the date of release from prison
or whenever else the felon’s civil rights supposedly
were restored must be ignored. Section 921(a)(20) itself
shows that post-conviction events have legal con-
sequences; pardons (and the other documents me-
ntioned in the “unless . . .” clause) come after the convic-
tion. Post-conviction statutory changes are no less
relevant than post-conviction pardons to the question
whether civil rights have been restored.
Adams contends that Melvin and Walden conflict not
only with Caron but also with McNeill v. United States, 131
S. Ct. 2218 (2011). The question in McNeill was whether
a particular state conviction was a “serious drug of-
fense” for the purpose of §924(e)(2)(A)(ii), which defines
a drug crime as “serious” if the maximum term of impris-
onment is ten years or more. McNeill was convicted of
two drug crimes in North Carolina when the maximum
sentence was ten years—and he received ten-year sen-
tences on both convictions. The state later reduced the
maximum sentence to less than ten years, and McNeill
contended that this meant that his drug convictions
no longer represented “serious” crimes and therefore
did not count toward the three qualifying convictions
needed for sentencing as an armed career criminal.
The Court rejected this argument after concluding that
§924(e)(2)(A)(ii) identifies as “serious” a drug crime
punishable by ten or more years when committed, no
matter what happens later. This shows, Adams con-
tends, that all post-conviction developments must be
ignored when applying the Armed Career Criminal Act.
8 No. 11-3707
Yet McNeill concerned §924(e)(2)(A)(ii), not §921(a)(20).
The latter section concerns the effects of post-convic-
tion developments, such as pardons and commutations.
If everything that happens after a crime (or conviction)
must be ignored, then pardons and other restorations
of civil rights also would be ignored, as they post-date
the conviction (and usually post-date release from
prison). The holding of McNeill that the maximum sen-
tence depends on state law at the time of the crime does
not foreclose a reading of §921(a)(20) that asks about
state law and practice at the time of the asserted restora-
tion of civil rights. This would be clear if the governor
in office when a given person was convicted had a
policy of restoring each felon’s civil rights on release
through pardon or commutation, and, while the felon
was in prison, a different governor was elected and
decided not to issue such pardons. To apply §921(a)(20)
the federal court must decide whether a felon’s civil
rights have actually been restored (or a misleading docu-
ment has been received)—and that depends on law
and events (including the contents of documents) at
the time of the potential restoration.
If Melvin and Walden are problematic, it is only when
a state restores a felon’s civil rights and then changes
its law after the restoration. Adams never regained his
civil right to carry firearms in Illinois, however, so
§921(a)(20) does not affect the status of his convictions
for the armed robberies in 1981 and 1982.
A FFIRMED
10-19-12