CLE SEMINAR - Federal Public Defender - District of Oregon

CLE SEMINAR

The A to Z of Firearms

Hosted at:

Federal Public Defender's Of f ice

Speaker:

AFPD Susan Russell and Investigator Dash Terry

Portland, Oregon Live on March 22, 2017

12:00pm to 1:00pm

Eugene, Oregon Via video conference on March 22, 2017

12:00pm to 1:00pm

Medford, Oregon Via video conference on March 22, 2017

12:00pm to 1:00pm

FIREARM DEFINITION

18 U.S.C. § 921 (a)( (3) "The term "firearm" means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm."

This definition applies to most federal firearms offenses, including 18 U.S.C. § 922(g). Under this definition a firearm need not be operational or loaded to constitute a firearm because the definition includes the frame or receiver of the weapon by itself. See e.g. United States v. Hunter, 101 F.3d 82, 83-86 (9th Cir. 1996). Extensive modifications though can fundamentally alter a firearm's characteristics to such a degree that it no longer constitutes a firearm under this definition. See United States v. Wada, 232 F.Supp.2d 1079 (D.Or 2004)(dewatted firearm ornament was no longer a "firearm" as defined under federal law)(Judge Brown).

A separate and more narrowly drawn definition of firearm exists under 26 U.S.C. § 5845(a) and lists those arms that are subject to registration under the tax code. Prohibited acts related to these arms are listed in 26 U.S.C. § 5861.

26 U.S.C. § 5845(a) Firearm. The term "firearm" means (1) a shotgun having a barrel or barrels of less than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length; (3) a rifle having a barrel or barrels of less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length; (5) any other weapon, as defined in subsection (e); (6) a machinegun; (7) any silencer (as defined in section 921 of Title 18, United States Code); and (8) a destructive device. The term "firearm" shall not include an antique firearm or any device (other than a machinegun or destructive device) which, although designed as a weapon, the Secretary finds by reason of the date of its manufacture, value, design, and other characteristics is primarily a collector's item and is not likely to be used as a weapon.

A firearm may constitute a firearm under both sections, or only one of them

ANTIQUE FIREARM

18 U.S.C. § 921 (a)(16):

The term "antique firearm" means--(A) any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured in or before 1898; or (B) any replica of any firearm described in subparagraph (A) if such replica--(i) is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition, or (ii) uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade; or (C) any muzzle loading rifle, muzzle loading shotgun, or muzzle loading pistol, which is designed to use black powder, or a black powder substitute, and which cannot use fixed ammunition. For purposes of this subparagraph, the term "antique firearm" shall not include any weapon which incorporates a firearm frame or receiver, any firearm which is converted into a muzzle loading weapon, or any muzzle loading weapon which can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof.

26 u.s.c. § 5845(g):

The term "antique firearm" means any firearm not designed or redesigned for using rim fire or conventional center fire ignition with fixed ammunition and manufactured in or before 1898 (including any matchlock, flintlock, percussion cap, or similar type of ignition system or replica thereof, whether actually manufactured before or after the year 1898) and also any firearm using fixed ammunition manufactured in or before 1898, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade.

U.S. v. WADA 1079 Cite as 323 F.Supp.2d 1079 (D.Or. 2004)

UNITED STATES of America, Plaintiff,

v.

Kozo WADA, Defendant.

No. CR 03-96-BR.

United States District Court, D. Oregon.

June 29, 2004. Background: Defendant entered plea of guilty to charges of dealing in firearms without federal firearms license and exporting defense articles without proper license. Holding: The District Court, Brown, J., held that dewatted firearm-ornaments that defendant sold were not "firearms" for sentencing purposes. Ordered accordingly.

Sentencing and Punishment e=>705 Dewatted firearm-ornaments that de

fendant sold were not "firearms," for purposes of calculating base offense level following defendant's convictions for dealing in firearms without federal firearms license and exporting defense articles without proper license, even if items were at one time operable firearms, and it was possible to modify items to restore their capacity to fire projectiles, where, as result of defendant's modification methods, each item no longer could expel projectile by action of explosive, and could not readily be converted to do so. 18 U.S.C.A. § 921(a)(3); U.S.S.G. § 2K2.l(b)(l)(D), 18 U.S.C.A.

See publication Words and Phrases for other judicial constructions and definitions.

Karin J. Immergut, United States Attorney, Fredric N. Weinhouse, Assistant

1. North Carolina v. Alford, 400 U.S . 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

United States Attorney, Portland, OR, for Plaintiff.

Steven T. Wax, Federal Public Defender, Christopher J. Schatz, Assistant Federal Public Defender, Portland, OR, for Defendant.

AMENDED OPINION AND ORDER

BROWN, District Judge.

In an Indictment dated February 25, 2003, the Grand Jury charged Defendant Kozo Wada with eleven felony counts of various firearms offenses and two counts seeking forfeiture of firearms, ammunition, and other property seized in the course of this investigation.

On December 12, 2003, Wada tendered, and the Court accepted, Alford 1 pleas to Counts One and Five of the Indictment, as amended, pursuant to the terms of a Settlement Agreement between the parties. The Court then found Wada guilty of Count One (Dealing in Firearms without a Federal Firearms License in violation of 18 U.S.C. § 922(a)(l)(A)) and Count Five (Exporting a "Defense Article" [a firearm] from the United States to Japan Without a Department of State License in violation of 22 U.S.C. §§ 2778(b)(2) and 2778(c) and certain Title 22 federal regulations).

The parties' Settlement Agreement provides the Court is to determine whether United States Sentencing Guideline (USSG) § 2K2.l(b)(l)(D) should be applied, which would increase by eight levels the base offense level for Count One. This enhancement applies if "the offense involved . .. 100-199 .. . " firearms. Id. The parties disputed the facts pertinent to this specific offense characteristic. The Court, therefore, conducted an evidentiary hearing on March 10, 2004; heard oral argument on April 16, 2004; and thereafter considered the parties' written submissions.2

2. After the evidentiary hearing, the Supreme Court issued an opinion in Blakely v. WashTington in which the Court held "every defen-

1080 323 FEDERAL SUPPLEMENT, 2d SERIES

For the reasons that follow, the Court concludes the government has not established by clear and convincing evidence that the items it seeks to count as "firearms" pursuant to USSG § 2K2.l(b)(l)(D) were, in fact, "firearms" as defined by the pertinent statute at the time Wada sold and shipped them to his customers in Japan. Instead the Court agrees with Wada, who characterized these items as "dewatted firearm-ornaments." The Court, therefore, finds USSG § 2K2.l(b)(l)(D) does not apply to enhance the base offense level for Count One because the "dewatted firearm-ornaments" that Wada sold as part of his business do not count as firearms under USSG § 2K2.l(b)(l)(D).3

THE LAW

1. Statutes

18 U.S.C. § 922(a)(l) provides: It shall be unlawful for any person except a ... licensed dealer, to engage in the business of . . . dealing in firearms,

18 U.S.C. § 921(a)(ll)(A) provides: The term "dealer" means any person engaged in the business of selling firearms at wholesale or retail ....

18 U.S.C. § 921(a)(21)(C) provides: The term "engaged in the business" means . . . as applied to a dealer in firearms . . . a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of

dant has the right to insist that the prosecutor prove to a jury [beyond a reasonable doubt] all facts legally essential to the punishment." - U.S.--,--, 124 S.Ct. 2531, 159 L.Ed.2d 403, 2004 WL 1402697, at *9 (2004)(emphasis in original). In light of this holding, Wada has the right to have a jury determine the number of firearms involved in Count One. Nonetheless, the Court issues this Opinion and Order in light of the fact that the Court finds in favor of Defendant on this

livelihood and profit through the repetitive purchase and resale of firearms,

18 U.S.C. § 921(a)(3) provides:

The term "firearm" means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.

2. Burden of Proof

Because the addition of eight levels to the base offense level for Count One would more than double the potential sentencing range for that Count, the parties agreed the Court must base its factual findings on a standard of clear and convincing evidence. See United States v. Valensia, 222 F.3d 1173, 1179 (9th Cir.2000). The parties' agreement, however, was reached before the Supreme Court decided Blakely.

FINDINGS OF FACT

The parties made certain factual stipulations during the proceedings on April 16, 2004, and, accordingly, the Court accepts such facts as true for purposes of this analysis. In addition, the Court has weighed and evaluated all of the evidence presented in connection with this sentencing issue. Based on the parties' stipula-

issue, which was raised and argued before Blakely and which, therefore, does not require a different procedure under the circumstances of this case.

3. The Court will resolve at Wada's sentencing hearing all of the other sentencing issues raised in Wada's memoranda, including the appropriate base offense level and Wada's arguments in support of his various requests for a downward departure.

U.S. v. WADA 1081 Cite a. 323 F.Supp.2d 1079 (D.Or. 2004)

tions and the Court's assessment of the record, the Court finds the following facts by clear and convincing evidence:

1. Wada, a Japanese citizen, was engaged in business in Oregon under the name of "U S Mart Co." Beginning in the year 2000, Wada became interested in selling military accessories and other merchandise to buyers in Japan. After he contacted police authorities in Osaka, Wada understood Japanese law would permit him to sell "dewatted firearm-ornaments" to such buyers; that is, "firearms" that he modified to render them inoperable before he shipped them to Japan.

2. In the course of his business, Wada purchased more than 100 firearms in Oregon; paid a federally licensed gunsmith, Roger Loock, to modify them to render them inoperable; and then sold and shipped the firearms as modified to purchasers in Japan.

3. The methods Wada used to modify these firearms changed their fundamental character and rendered them inoperable as functioning firearms. The Court adopts as part of its findings all of the evidence Wada offered concerning the several methods he used for this purpose and his evidence showing the extreme difficulty and unlikelihood that, once modified, any such former "firearm" could readily be restored to functional use.

4. The following are examples of Wada's modifications of the firearms: Wada had Roger Loock modify a firearm by cutting the frame of the firearm vertically or by removing and deactivating the slide rail from the top of a semi-automatic handgun as described in Exhibit A to Wada's Evidentiary Hearing and Sentencing Memorandum. In addition, Wada used several methods to modify the barrels of semi-automatic handguns, which included cutting a slot out of the barrel and welding a metal rod to the barrel or drilling a hole on one side of the barrel and

inserting a hardened metal pin into the barrel and through a steel rod.

5. After a "firearm" was "deactivated" by one of Wada's methods, it would take a great deal of time, expertise, equipment, and materials to attempt to reactivate the item so that it could "expel a projectile by the action of an explosive." As a result of Wada's modification methods, each "firearm" (a) no longer was "designed to ... expel a projectile by the action of an explosive," (b) could not "readily be converted" to do so, and (c) was no longer "the frame or receiver" of a weapon that was "designed to or ... [could] readily be converted to expel a projectile by the action of an explosive." The Court, therefore, finds unconvincing the government's evidence that such modified firearms could "readily" be returned to functional use.

DISCUSSION

According to the government, USSG § 2K2.l(b)(l)(D) applies to Count One because the "dewatted firearm-ornaments" that Wada sold fit the definition of "firearm" under federal law when he sold them, and, therefore, they should be counted for purposes of this specific offense characteristic.

Applying the definition of "firearm" in 18 U.S.C. § 921(a)(3) to the items Wada sold in the course of his business, the government asserts it need only prove by clear and convincing evidence any of the following to justify the application of USSG § 2K2.l(b)(l)(D) to Count One: (1) each item to be counted "was" designed to expel a projectile by an action of an explosive, or (2) each item ''will" expel a projectile by the action of an explosive, or (3) each item "was" the frame or receiver of any such weapon. The Court, however, disagrees with the government's statutory interpretation and construction.


With respect to the government's first asserted option, the Court notes 18 U.S.C. § 921(a)(3)(A) is not written in the past tense and, in particular, does not speak in terms of whether an item ''was" designed to expel a projectile. The statute explicitly applies to any weapon that "will," "is designed to," or "may readily be converted to" expel a projectile. These words''will," "is designed to," and "may readily be converted to"-must be given their ordinary meaning. See Bailey v. United States, 516 U.S. 137, 144-45, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) (citations omitted). Under any ordinary interpretation, "will" does not mean "was," "is designed to" does not mean "was designed to," and "may readily be converted to" does not mean "was converted to." Thus, the Court rejects the government's argument that USSG § 2K2.l(b)(l)(D) applies to Count One on the ground that each of the modified "firearms" originally was designed to expel a projectile by the action of an explosive.

With respect to the government's second asserted option, the Court concludes the government has not proved by clear and convincing evidence that each item, as modified, ''will" expel a projectile by the action of an explosive. Although there is some evidence that it is not impossible for a person to modify such a "firearm" to restore its capacity to fire a projectile if he invested significant time and effort and acquired all of the parts and equipment necessary to do so, that evidence is not sufficient to prove the item ''will" expel a projectile or could "readily be converted" to do so. Indeed, the whole point of Wada's extensive modification efforts was to render each "ornament" inoperable as a "firearm," and Wada's evidence proves he effectively did so.

4. Because the Court adopts Wada's primary analysis opposing application of USSG

Finally, the government's third asserted option also is not supported by the ordinary meaning of the words in the statute. Although 18 U.S.C. § 921(a)(3)(B) defines as a firearm "the frame or receiver of any such weapon," and each of the items as modified by Wada includes a "frame" or a "receiver," the government's argument fails because only the frame or receiver of "any such weapon" qualifies. For the reasons already stated, these items as modified are not included in the definition of "any such weapon."

In summary, the Court agrees with Wada and finds the changes Wada made to each modified firearm fundamentally altered its characteristics to such a degree that it no longer was a "firearm" as defined under federal law by the time it was sold and shipped to Wada's customers in Japan. Thus, the Court finds these "dewatted firearm ornaments" do not qualify for purposes of the specific offense characteristic set forth in USSG § 2K2.l(b)(l)(D).4

IT IS SO ORDERED.

In re ADOPTION OF BABY C, a minor child.

No. 04-4044-SAC.

United States District Court, D. Kansas.

June 10, 2004.

Background: Adoptive parties filed petition for adoption in state court. After bio-

§ 2K2 .l(b)(l)(D), the Court need not address Wada's alternative arguments.

Firearm defined

•Any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive. •Frame or receiver of any such weapon. •Firearm suppressor or silencer. •Destructive device.

•Does not include an antique firearm.

For purposes of§ 922 and § 924 violations 18 U.S.C. § 921(a)(3)

1. Slide 2. Barrel 3. Recoil spring assembly 25

4. Firing pin ~~-~ 5. Spacer sleeve ~4.

23_

6 . Firing piri spring 22 ~ ·;)

7.Springcops ~21 · • ?\·. ~, · &" s. Firing pin safety I ' 9. Firing piri safety spring 26. 1 10. Extractor ~ t1 ·.

11. Extractor depressor plunger _ , . 12. Extractor depresso~ plunger spring ;;-- - --~ _,.. --~ _ 13. Spring-loaded bearing 19~. ~ 14. Slide cover plate 33 .c a.

~1-" 15. Rear sight 15a. Front sight 16. Frame 17. Magazine catch spring 18, Magazine catch 19. Slide lock spring 20. Slide lock 21. Locking block 22. Trigger mechanism housing 23. Connector

.. \".. .. ... " ' · '.•, .. .. .. .. .. .. ... ..

\', 1\ .. " \'. ,. •\

24. Trigger spring 25. Trigger with trigger bar

15 .. L]j) 11

7.~~· 13 'b • 6. ""Q5 26. Slide stop lever

27. Trigger pln 28. Trigger housing pin 29. Follower 30. Magazine spring 31. Magazine floor plate 31 a. Magazine insert 32. Magazine tube 33. Locking block pin

-GI ,...__ . 4 ~ · 3 . ~~

Anatomy of a Firearm

•Frame or receiver: (usually contains serial number) although can be located on the slide.

•Bore: The bore in the inside of the guns barrel through which the projectile travels when fired.

•Breech: The Breech is the area of the firearm that contains the rear end of the barrel, where the cartridge is inserted.

Anatomy of a Firearm •Cylinder: The Cylinder is the part of a revolver that

holds cartridges in separate chambers. The Cylinder of a revolver rotates as the gun is cocked, brining each chamber into alignment with the barrel.

•Grip: The Grip is the portion of a handgun or rifle that's used to hold the firearm.

•Hammer or Striker: The Hammer on a revolver is the part that strikes the firing pin or the cartridge primer directly, detonating the primer which discharges the gun. In striker fired pistols, the striker serves the same purpose but is contained inside the slide or action.

Anatomy of a Firearm

Serial number can be found on the slide or the frame depending on model. (Important when determining classification as a firearm.)

REVOLVER

. . sigh

1c.yli' nflerr -

trfi'g er -

Erig!leil gua gri · -

cy,linde:r t-a.lease

REVOLVER FRAME

RIFLE

26 U.5.C. § 5845(c)

The term "rifle" means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed cartridge to fire only a single projectile through a rifled bore for each single pull of the trigger, and shall include any such weapon which may be readily restored to fire a fixed cartridge.

BA.l'IREL, HANDGUARD and FRONT SlGHT COMPOf.IENTS

IH THIS DtSA.SSEMDt. Y ~ROUP ,,,,.---~ ""'WUARllW

QllilruBE

UPPER RECEIVER, BCIL T, BOL. T CARRI l::A,

CHARGING HANDLE,

LOWER RECEIVER, PISTOL !)RIP, BUTT$T(ICK,

aMI M -'CAZIN E COMPONENTS IN THIS OISASSEMSL Y GROUP

RE:AA*'llT

-~· N0al<9;PS'W

~Jl'!ill},tf'I'

B.E.'il,1,lll>il INDBC

El.liV""TIQtil1'9'1Qil

AR-15-TYPE RIFLE EXPLODED

DIAGRAM

REAR SIGHT COMPONENTS

IN THIS

DISl\SSE ... BL't

ClROUP

~ ""'-- " ... """ lf 'Cr. ft\.L(JWffi

Mlll~Eao.

- W.'"21NEeffltl<I

I ... ,,.,,.e fLOOfl

PlAlE

~

SEMI AUTOMATIC RIFLE • Any repeating rifle which utilizes a portion of the energy of a firing

cartridge to extract the fired cartridge case and chamber the next round, and which requires a separate pull of the trigger to fire each cartridge.

Rear Sight Drum Car-rying Handle Fto t Sight

\ Ej~on Port Assemtily

Sli . Handguard prmg

..,,..,.,.,. Upper Sling

Swiv I

Magazine Re ease Button

Illustrated by fire.arms](D. com

Flash Suppressor

AR-15 Pistol • Not regulated under NFA

• No collapsible stock therefor barrel length is not regulated

• Not legal under some state laws

AMMUNITION

18 U.S.C. § 921 (a)(17)

(A) The term "ammunition" means ammunition or cartridge cases, primers, bullets, or propellent

powder designed for use in any firearm .

(B) The term "armor piercing ammunition" means-

(i) a projectile or projectile core which may be used in a handgun and which is constructed entirely

(excluding the presence of traces of other substances) from one or a combination of tungsten alloys,

steel, iron, brass, bronze, beryllium copper, or depleted uranium; or

(ii) a full jacketed projectile larger than .22 caliber designed and intended for use in a handgun and

whose jacket has a weight of more than 25 percent of the total weight of the projectile.

(C) The term "armor piercing ammunition" does not include shotgun shot required by Federal or

State environmental or game regulations for hunting purposes, a frangible projectile designed for

target shooting, a projectile which the Attorney General finds is primarily intended to be used for

sporting purposes, or any other projectile or projectile core which the Attorney General finds is

intended to be used for industrial purposes, including a charge used in an oil and gas well

perforating device.

AMMUNITION OR BULLETS

AMMUNITION

PROHIBITED PERSONS

18 u.s.c. § 922(g)

It shall be unlawful for any person--

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term

exceeding one year;

(2) who is a fugitive from justice;

(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of

the Controlled Substances Act (21 U.S.C. 802));

(4) who has been adjudicated as a mental defective or who has been committed to a mental

institution;

(5) who, being an alien--

(A) is illegally or unlawfully in the United States; or

(B) except as provided in subsection (y)(2), has been admitted to the United States under a

nonimmigrant visa (as that term is defined in section 101 (a)(26) of the Immigration and Nationality

Act (8 U.S.C. 1101 (a)(26)));

(6) who has been discharged from the Armed Forces under dishonorable conditions;

(7) who, having been a citizen of the United States, has renounced his citizenship;

(8) who is subject to a court order that--

(A) was issued after a hearing of which such person received actual notice, and at which such

person had an opportunity to participate;

(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person

or child of such intimate partner or person, or engaging in other conduct that would place an intimate

partner in reasonable fear of bodily injury to the partner or child; and

(C)(i) includes a finding that such person represents a credible threat to the physical safety of such

intimate partner or child; or

(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force

against such intimate partner or child that would reasonably be expected to cause bodily injury; or

(9) who has been convicted in any court of a misdemeanor crime of domestic violence,

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any

firearm or ammunition; or to receive any firearm or ammunition which has been shipped or

transported in interstate or foreign commerce.

Restoration of Civil Rights

18 U.S.C. § 921(a)(20):

"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."

Restoration of civil rights is evaluated under the law of the jurisdiction where defendant was convicted. United States v. McE/yea, 158 F.3d 1016 (9th Cir. 1998); United States v. Gomez, 911 F.2d 219 (9th Cir. 1990).

State law must restore rights completely - any weapons limitation under state law activates the federal ban on possessing all firearms. Caron v. United States, 524 U.S. 308 (1998); United States v. Qualls, 172 F.3d 1136 (9th Cir. 1999).

For prior federal felony conviction restoration of rights must be under federal law. Beecham v. United States, 511 U.S. 368 (1994). No federal court jurisdiction to consider motion to expunge conviction. United States v. Crowell, 374 F.3d 790 (9th Cir. 2004).

1016 158 FEDERAL REPORTER, 3d SERIES

collective bargaining agreement. We there- firearm. fore reverse and remand to the district court. 922(g)(l).

18 U.S.C.A. §§ 921(a)(20),

REVERSED AND REMANDED.

UNITED STATES of America, Plaintiff-Appellee,

v.

Joe Lowell McELYEA, Jr. Defendant-Appellant.

No. 97-10269.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 15, 1998.

Decided Oct. 16, 1998.

Following jury trial, defendant was convicted in the United States District Court for the District of Arizona, Roslyn 0. Silver, J ., of two counts of being a felon in possession of a firearm. Defendant appealed. The Court of Appeals, Wallach, Circuit Judge, sitting by designation, held that: (1) defendant did not have his civil rights restored under Arizona law, and (2) defendant's two state burglary convictions were not felonies "committed on occasions different from one another," for purpose of enhancing defendant's sentence under Armed Career Criminal Act (ACCA).

Affirmed in part; vacated and remanded in part.

Trott, Circuit Judge, concurred in part, dissented in part, and filed opinion.

1. Criminal Law e->1139

Court of Appeals reviews de novo whether a defendant's rights have been restored such that the prior convictions may not be used as predicate offenses in a prosecution for being a felon in possession of a

2. Federal Courts 11?404

Court of Appeals looks to state law to determine whether a defendant's civil rights were substantially restored such that prior convictions could not be used as predicate offenses in prosecution for being a felon in possession of a firearm. 18 U.S.C.A §§ 921(a)(20), 922(g)(l).

3. Weapons 11?4

Defendant who was previously convicted of felonies in Arizona did not have his civil rights restored under Arizona law, and thus could be convicted under federal law for being felon in possession of a weapon, notwithstanding state's approval of his application for voter's registration card, calling of defendant for jury duty, and permitting him to vote in several elections; defendant was ineligible for restoration of his civil rig·hts at time he applied and engaged in such activities through misrepresentation. 18 U.S.C.A. §§ 92l(a)(20), 922(g)(l); A.R.S. §§ 13-904, subd. A, 13-906, subds. A, B.

4. Criminal Law 11?1203.26(1)

Court of Appeals reviews de nova the application of the Armed Career Criminal Act (ACCA). 18 U.S.C.A. § 924(e).

5. Criminal Law 11?1202.14

Defendant's two state burglary convictions were not felonies "committed on occasions different from one another," for purpose of enhancing defendant's sentence under Armed Career Criminal Act (ACCA), where defendant and accomplice broke into store that was part of a strip mall, chopped hole in wall between store they had entered and adjoining store, and removed items from each store. 18 U.S.C.A. § 924(e).

6. Statutes 11?217.4

When a statute is ambiguous, Court of Appeals may look to legislative history as a guide to its meaning.

Gregory A. Bartolomei, Bartolomei & Victor, Phoenix, AZ, for defendant-appellant.

U.S. v. McELYEA 1017 Cite as 158 F.3d 1016 (9th Cir. 1998)

Paul V. Rood, Assistant United States Attorney, Phoenix, AZ, for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona Roslyn 0. Silver, District Judge, Presiding. D.C. No. CR-95---00308-ROS.

Before: NOONAN and TROTT, Circuit Judges, and WALLACH, Judge.*

WALLACH, Circuit Judge.

Appellant Joe Lowell McElyea ("McElyea") appeals his jury conviction for two counts of a felon in possession of a firearm under 18 U.S.C. § 922(g)(l) (1996). McElyea argues that it was reversible error for the district court to fail to instruct the jury that the Government had the burden to prove beyond a reasonable doubt that McElyea's civil rights had not been restored. As a result, McElyea argues that his conviction was unlawful.

In the alternative, he appeals the sentence imposed upon him by the district court. He claims that the district court improperly enhanced his sentence when it sentenced him ru; an "Armed Career Criminal" pursuant to 18 U.S.C. § 924(e)(l) because two of the predicate convictions were not "committed on occasions different from one another". We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm the conviction, but remand the case for resentencing.

I. Jury Instructions

On February 7, 1997, McElyea was convicted of possessing a Lorcin .380 caliber semi-automatic pistol and a Marlin .22 caliber rifle. Appellant's Excerpts of Record ("E.R.") A and H. Under 18 U.S.C. § 922(g)(l), convicted felons are prohibited from possessing firearms. The statute provides: "[i]t shall be unlawful for any person .. . who has been convicted in any court of [ ] a crime punishable by imprisonment for a term exceeding one year . . . to receive any firearm or ammunition which has been shipped or transported in interstate or for-

•The Honorable Evan J . Wallach, United States Court of International Trade, sitting by designa-

eign commerce." 18 U.S.C. § 922(g). Section 921(a)(20) provides, inter alia: "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 a pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms."

In 1980, McElyea was convicted of two counts of burglary, a felony. McElyea received a conviction for selling narcotic drugs, also a felony, in 1985. McElyea claims that he believed his civil rights were restored under Arizona law in 1992 and that he could lawfully possess a firearm. He reasons that because the state of Arizona approved his application for a voter's registration card, called him for jury duty, and permitted him to vote in several elections, his civil rights were restored. Consequently, he claims that the district court should have instructed the jury that the Government had the burden of proving beyond a reasonable doubt that his civil rights were not restored.

[1, 2] "We review de novo whether [a defendant's] rights have been restored such that the prior convictions may not be used as predicate offenses in a prosecution under 18 U.S.C. § 922(g)." United States v. Oman, 91 F.3d 1320, 1321 (9th Cir.1996). We look to state law to determine whether a defendant's civil rights were substantially restored. United States v. Dahms, 938 F.2d 131, 133 (9th Cir.1991). The state of Arizona, where McElyea was convicted, automatically suspends the right to vote, hold public office of trust or profit, serve as a juror, possess a gun or firearm, or any other civil rights necessary while such person is imprisoned. See Ariz.Rev.Stat. § 13-904(A). Suspension is designed to ensure the security of the institution and reasonable protection of the public from all convicted felons. Id. However, after discharge from prison, a convicted felon "may have any civil rights which were lost or suspended by his conviction restored by the superior court judge by whom the

ti on.


person was sentenced or his successors in office from the county in which he was originally sentenced." Ariz.Rev.Stat. § 13-906(A).

[3] McElyea claims that he petitioned the Maricopa County Superior Court to have his civil rights restored in 1992. Reporter's Transcript ("RT") vol. III at 344. Although he did not receive any communications regarding his application, he applied for a voter registration card approximately six weeks later. McElyea testified that when he applied for the voter registration card he signed a statement that he had never been convicted of a felony or that if he had his civil rights had been restored. See RT vol. III at 371. He stated that he signed it because he "felt that [his] rights had been restored." RT vol. III at 349. He also testified that he never received any correspondence from the court informing him that his civil rights had been restored. RT vol. III at 369.

We find that McElyea's civil rights were not restored, and he had no reasonable expectation they would be. Under Arizona law, a convicted felon is not allowed to apply for the restoration of his civil rights until two years have passed from the date of absolute discharge. See Ariz.Rev.Stat. § 13-906(B). Here, McElyea testified that "[he] had received an absolute discharge in April [of 1992], and [he] waited approximately two weeks before [he] went and filled out the application [for restoration of his civil rights]." RT vol. III at 345. McElyea was ineligible for restoration of his civil rights at that time. In addition, McElyea received no notification that his petition for restoration of his civil rights had been granted and the record does not reflect that any such documentation exists. Consequently, McElyea's statement on his application for voter registration that his civil rights had been restored was fraudulent. We normally look to whether a felon has been restored the right to sit on a jury, to vote, and to hold public office in determining if the felon's civil rights have been restored. See United States v. Andaverde, 64 F.3d 1305, 1309 (9th Cir.1995), cert.

I. The state of Arizona revoked McElyea 's right to vote on September 4, 1996. RT vol. III at 367-

denied, 516 U.S. 1164, 116 S.Ct. 1055, 134 L.Ed.2d 199 (1996). However, where, as here, those rights were granted based on his misrepresentation, we will give them no weight.1

Because we find that McElyea's civil rights were not restored, the district court did not commit reversible error in its instructions to the jury.

IL Enhanced Sentence

[4] We review de novo the application of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e) (1994); see also United States v. Antonie, 953 F.2d 496, 497 (9th Cir.1991). The statute provides:

In the case of a person who violates § 922(g) of this title and has three previous convictions by any court referred to in § 922(g)(l) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years ....

18 U.S.C. § 924(e)(l).

[5] McElyea does not dispute that his 1985 conviction for sale of narcotics qualifies as one previous conviction within the meaning of the statute. He claims, however, that his two burglary convictions in 1980 do not constitute felonies "committed on occasions different from one another". The facts underlying McElyea's convictions in 1980 are as follows: on March 15, 1979, McElyea and an accomplice broke into a store that was part of a strip mall. Once inside the store, they chopped a hole in the wall between the store they had entered and the adjoining store. Items were removed from each store. RT for June 2, 1997 at 13. Based on these facts, McElyea says his actions constituted a single criminal transaction.

A. Legislative History Of The ACCA

[6] The statutory language "committed on occasions different from one another" is ambiguous. When a statute is ambiguous,

68.

U.S. v. McELYEA 1019 Cite as 158 F.3d 1016 (9th Cir. 1998)

we may look to legislative history as a guide tion on six counts for armed robbery in to its meaning. See Tennessee Valley Au- New York State in which the defendant thority v. Hil~ 437 U.S. 153, 184 n. 29, 98 was convicted for having robbed six differ-S.Ct. 2279, 57 L.Ed.2d 117 (1978). "The ent people at a restaurant at the same [Armed Career Criminal] Act was promul- time. United States v. Petty, 798 F.2d gated to punish habitual offenders who were 1157 (8th Cir.1986). found to be disproportionately responsible On petition for a writ of certorari [sic], for violent crimes." United States v. Anto- the Solicitor General on behalf of the Unit-nie, 953 F.2d at 499 (citing ACCA: Hearing ed States confessed error, pointing out on H.R. 1627 and S. 52 Before the Subcomm. that, while the armed career criminal stat-on Crime of the House Judiciary Comm., ute Jacked descriptive language found in 98th Cong., 2d Sess. 12-13 (1984) (statement other similar federal statutes to the effect of Senator Spector)). that the convictions be for "offenses com-

The predecessor statute to the present mitted on occasions different from one an-ACCA did not include the language "commit- other", see 18 U.S.C. 3575(e)(l) [relating to ted on occasions different from one another". "Increased sentence for dangerous special 18 U.S.C.App. § 1202(a)(l) (1982). That Ian- offenders", repealed on Oct. 12, 1984], 21 guage was added in 1988. No Senate or U.S.C. 849(e)(l) [relating to "Dangerous House Report was submitted with the legis- special drug offender sentencing" repealed lation amending § 924(g). See 1988 on Oct. 12, 1984], the legislative history U.S.C.C.A.N. 5937. Nor does the legislative nevertheless made clear that a similar in-history supply a precise meaning for the terpretation was intended here. The Su-phrase at issue. However, it does provide preme Court reversed and remanded the some guidance. case to the court of appeals for consider-

Senator Eiden, Chairman of the Judiciary ation of the Solicitor General's views. Committee, included a statement in the Con- The proposed amendment clarifies the gressional Record which set forth "a section- armed career criminal statute to reflect by-section analysis of those provisions" which the Solicitor General's construction and to he "believe[d would] be helpful to those who bring the statute in conformity with the wish[ed] to know the intent of the drafters of other enhanced penalty provisions cited this legislation." 134 Cong. Rec. SI 7360-02 above. Under the amendment, the three (daily ed. Nov. 10, 1988) (statement of Sen. previous convictions would have to be for Eiden). According to his statement, the con- offenses "committed [sic] occasions differ-gressional intent regarding the amendment ent from one another". Thus, a single to § 924(g) is: multi-count conviction could still qualify

Section 7056 [which inserted the Ian-guage "committed on occasions different from one another"] clarifies the armed career criminal statute, 18 U.S.C. 924(e), by inserting language describing the requisite type of prior convictions that trigger the law's mandatory minimum sentencing provisions. Presently, § 924(e) provides that a person found in possession of a firearm shall be sentenced to a mandatory minimum prison term of not less than fifteen years if such person "has three previous convictions . . . for a violent felony or a serious drug offense" (as those terms are defined in the law). Recently, a court of appeals held that the "three previous convictions" requirement was met by a convic-

where the counts related to crimes committed on different occasions, but a robbery of multiple victims simultaneously (as in Petty ) would count as only one conviction. This interpretation plainly expresses that concept of what is meant by a "career criminal", that is, a person who over the course of time commits three or more of the enumerated kinds of felonies and is convicted therefor. It is appropriate to clarify the statute in this regard, both to avoid future litigation and to insure that its rigorous sentencing provisions apply only as intended in cases meriting such strict punishment.

Because Congress intended "to reflect the Solicitor General's construction" of the


ACCA when it added the language "committed on occasions different from one another," Congressional intent may thus be discovered in the Solicitor General's brief filed on April 13, 1987 before the Supreme Court in Petty v. United States, [481 U.S. 1034, 107 S.Ct. 1968, 95 L.Ed.2d 810 (1987)] ("Petty brief'').

In his brief, the Solicitor General framed the issue on when the enhanced sentencing provision should apply as "whether Congress intended that convictions on multiple robbery counts arising from a single criminal episode should be treated as multiple 'previous convictions * * * for robbery .... '" Petty Brief at 4-5. He looked at the other statutes which provide for enhanced penalties (referred to by Senator Eiden) and concluded that "the legislative history of the Armed Career Criminal Act of 1984 makes it appear that both Congress and those supporting the legislation, including the Department of Justice, did not intend that the penalty provision [of the ACCA] would apply more broadly than in the case of the other federal enhanced penalty statutes." Id. at 5-6. The Solicitor General noted that two predecessor bills to the ACCA included similar language but only required two previous convictions rather than the three ultimately required by the ACCA. Id. at 6. The Solicitor General stated that two relevant Senate reports:

strongly suggest that the legislators intended that prior convictions would be based on multiple criminal episodes that were distinct in time. . . . [E]ach Report provided, in identical language, that "[t]he bill applies to any person who participates in an armed robbery or burglary if that person has been convicted of robbery or burglary on two or more occasions in the past."

Id. at 6 (quoting S.Rep. No. 98-190, at 10 (1983) (emphasis in Brief); S.Rep. No. 97-585, at 9 (1982) (emphasis in Brief)). The Solicitor General also pointed to the references throughout the floor debates and legislative reports to "career criminals," "repeat offenders," "habitual offenders," "recidivists," "revolving door" offenders, "three time loser," "third-time offender," and other similar language as supporting his position that Congress did not intend "to count previous con-

victions on multiple felony counts arising from a single criminal episode as multiple 'previous convictions.' " Petty Brief at 7 (emphasis added).

As stated by then-Assistant Attorney General Stephen S. Trott, armed career criminals are: "people who have demonstrated, by virtue of their definition, that locking them up and letting them go doesn't do any good. They go on again, you lock them up, you let them go, it doesn't do any good, they are back for a third time. At that juncture we should say, 'That's it; time out; it is all over. We, as responsible people, will never give you the opportunity to do this again.'" Id. at 8 (quoting ACCA, Hearing Before the Subcomm. on Crime of the House Comm. on the Judiciary, 98th Cong., 2d Sess. at 64 (1984)). The Solicitor General concluded that "the court of appeals [in Petty ] was in error in construing the statute to reach multiple felony convictions arising out of a single criminal episode." Id. at 10.

Thus, the ACCA was amended to prevent the application of an enhanced sentence to a defendant who committed simultaneous crimes, regardless of how many convictions resulted from those actions. Congress intended for the enhanced sentence to be applied when a defendant was guilty of committing multiple crimes that took place over a period of time. Clearly, Congress meant for this provision to reach career criminals who have shown that they cannot be rehabilitated.

B. The Circuits Are Split On The Meaning Of "Occasions Different From One Another"

The leading case in our circuit on the interpretation of 18 U.S.C. § 924(e) is United States v. Antonie, 953 F.2d 496 (9th Cir. 1991). In Antonie, the court found that two robberies, committed forty minutes apart and in two different cities against different victims, were "two separate and distinct criminal episodes." Id. at 499. Consequently, they qualified as crimes "committed on occasions different from one another." See id. As we said in Antonie, "[i]t is clear that Congress intended to deal harshly with persons who repeatedly commit violent criminal acts. . . . The Act was promulgated to pun-

U.S. v. McELYEA 1021 Citeas158 F.3d 1016 (9thCir. 1998)

ish habitual offenders who were found to be residences." Id. at 1210. The court stated disproportionately responsible for violent that "[b]ecause Congress intended to punish crimes." Id. recidivists, the predicate conduct must

Although the fact pattern before us is dif- amount to separate and distinct transactions ferent from that in Antonie and has not been in some definable sense." Id. The Sixth addressed by our court, other circuits have Circuit concluded that "there exists no princonfronted similar fact patterns with differ- cipled way of distinguishing between the end ing results. In United States v. Tisdale, 921 of the first burglary and the beginning of the F.2d 1095, 1099 (10th Cir.1990), the Tenth second." Id. Circuit upheld a sentence enhancement for a defendant who had broken into a shopping mall and then burglarized three separate businesses. See id. at 1098. The court found that the defendant had committed separate crimes thus triggering enhancement because "[a]fter the defendant 'successfully completed' burglarizing one business, he was free to leave. The fact that he chose, instead, to burglarize another business is evidence of his intent to engage in a separate criminal episode." Id. at 1099.

In United States v. Hudspeth, 42 F.3d 1015, 1021 (7th Cir.1994), the Seventh Circuit held that a defendant who went to a strip mall and burglarized three separate businesses qualified for a sentence enhancement. There, the court found that the defendant had "committed three distinct burglaries against three separate victims (the owners of three distinct business enterprises), in three separate locations over the course of more than thirty minutes .... " Id. Reasoning that the burglaries were sequential rather than simultaneous, the court stated that "it is physically impossible for one person to commit three burglaries simultaneously at three different locations." Id.

In United States v. Murphy, 107 F.3d 1199 (6th Cir.1997), the Sixth Circuit determined that two convictions for armed robberies of two residences in a duplex did not constitute crimes "committed on occasions different from one another." There, the defendant and accomplices had robbed the occupant of the first residence and then, with defendant remaining in the first residence to prevent the occupant from calling the police, his accomplices entered the adjoining residence and robbed the second victim. Id. at 1208. According to the com·t, the defendant had "engaged in only one criminal episode in this case, despite the robbery of two separate

C. McElyea's Burglaries Arose Out of A Single Criminal Episode

The Sixth Circuit's reasoning in Murphy follows our understanding of the intent of Congress. The record before us does not contain any information regarding the amount of time McElyea spent in each store or whether he stayed in one store while his accomplice entered the other store. Consequently, we cannot say that the burglaries committed by McElyea were "separate and distinct criminal episodes". Rather, we hold McElyea's acts were part of one criminal episode.

McElyea committed two identical crimes in basically the same location within a short time period. He does not meet the profile of a career criminal envisioned by Congress. Consequently, we find that McElyea's 1980 burglaries were not "committed on occasions different from one another" and the district court erred in enhancing McElyea's sen-tence.

The conviction is AFFIRMED. The sentence is VACATED and the matter REMANDED for resentencing in accordance with this opinion.

TROTT, Circuit Judge, Concurring and Dissenting,

Although I agree with my colleagues that McElyea's civil rights had not been restored and that the jury instruction issue he brings to us has no merit, I regretfully disagree with their application to him of the Armed Career Criminal Act. I do so because I believe that the Tenth Circuit's interpretation in United States v. Tisdale, 921 F.2d 1095 (10th Cir.1990) of the phrase "occasions different from one another" is correct, the combative and irrelevant testimony of an ag-


gressive assistant attorney general notwithstanding. The Tenth Circuit said,

We find the trial court's reasoning persuasive. After the defendant "successfully completed" burglarizing one business, he was free to leave. The fact that he chose, instead, to burglarize another business is evidence of his intent to engage in a separate criminal episode. Moreover, unlike Petty, the defendant's burglaries did not occur at the same location. The record shows that although defendant entered one shopping mall he had to physically break and enter three separate structures. The fact each incident occurred inside one enclosed structure does not alter our conclusion that the crimes were committed at different locations. Thus we find that the trial court properly enhanced the defendant's penalty under § 924(e)(l).

Id. at 1009.

We reviewed this very analysis in United States v. Antonie, 953 F.2d at 496 (9th Cir. 1991). At that time, we said about Tisdale that "[w]e are not persuaded that ... we should disagree with our sister circuits' applications of [§ 924(e), as amended)." Id. at 499. Nevertheless, this panel opts seven years later to disagree with Tisdale and to aggravate an intercircuit conflict. I decline to sign on to what I respectfully consider to be a mistake with respect to the intent and reach of the plain language of the Armed Career Criminal Act. I can only hope that the cases decided in reliance on our statements about Tisdale in Antonie are not damaged by our about-face.

Kathy MONTEIRO, individually, as the legal guardian of her minor daughter Jane Doe, and on behalf of all other similarly situated individuals, PlaintiffAppellant,

v.

THE TEMPE UNION HIGH SCHOOL DISTRICT, a political subdivision of the State of Arizona, and Daniel Perkins, Randy Clawson, Richard Foreman and Steven Rich, individually and in their official capacities as members of the Governing Board of the Tempe Union High School District, Defendants-Appellees.

No. 97-15511.


Argued and Submitted Feb. 11, 1998.

Decided Oct. 19, 1998.

Parent, on behalf of African-American student, brought suit, alleging that school district violated student's rights under Equal Protection Clause and Title VI of Civil Rights Act, by requiring students in English class to read classic literary works that contained repeated use of profane, insulting and racially derogatory term. The United States District Court for the District of Arizona, Stephen M. McN amee, J., dismissed suit, and plaintiff appealed. The Court of Appeals, Reinhardt, Circuit Judge, held that: (1) school district's assignment of the books and its refusal to remove them from the curriculum was not discriminatory conduct prohibited by Equal Protection Clause or Title VI, but (2) allegations of hostile racial educational environment stated claim under Title VI.

Affirmed in part, reversed in part, and remanded.

Boochever, Circuit Judge, filed concurring opinion.

1. Federal Civil Procedure e->825, 1838

After dismissal of her first complaint, plaintiff should have been permitted to file

524 U.S. 308 CARON v. U.S. 2007 Cite as 118 S.Ct. 2007 (1998)

ther a Title IX action or a state-law tort action, woulcl,l~JBexceed the amount of a federal grant.18 That is surely not relevant to the question whether the school district or the injured student should bear the risk of harm-a risk against which the district, but not the student, can insure. It is not clear to me why the well-settled rules of law that impose responsibility on the principal for the misconduct of its agents should not apply in this case. Ai; a matter of policy, the Court ranks protection of the school district's purse above the protection of immature high school students that those rules would provide. Because those students are members of the class for whose special benefit Congress enacted Title IX, that policy choice is not faithful to the intent of the policymaking branch of our Government.

I respectfully dissent.

Justice GINSBURG, with whom Justice SOUTER and Justice BREYER join, dissenting.

Justice STEVENS' opinion focuses on the standard of school district liability for teacher-on-student harassment in secondary schools. I join that opinion, which reserves the question whether a district should be relieved from damages liability if it has in place, and effectively publicizes and enforces, a policy to curtail and redress injuries caused by sexual harassment. Ante, at 2006. I think it appropriate to answer that question for these reasons: (1) the dimensions of a claim are determined not only by the plaintiff '~.J.llil7allegations, but by the allowable defenses; (2) this Court's pathmarkers are needed to afford guidance to lower courts and school officials responsible for the implementation of Title IX.

In line with the tort law doctrine of avoidable consequences, see generally C. McCormick, Law of Damages 127-159 (1935), I

18. Amici curiae National School Boards Associa· tion and the New Jersey School Boards Associa· tion point to a $1 .4 million verdict in a recent Title IX case. See Brief for National School Boards Association et al. as Amici Curiae 5, and n. 4 (citing Canutillo Independent School Dist. v. Leija, 101 F.3d 393 (C.A.5 1996), cert. denied, 520 U.S. 1265, 117 S.Ct. 2434, 138 L.Ed.2d 195 (1997)); see also Brief for TASB Legal Assistance

would recognize as an affirmative defense to a Title IX charge of sexual harassment, an effective policy for reporting and redressing such misconduct. School districts subject to Title IX's governance have been instructed by the Secretary of Education to install procedures for "prompt and equitable resolution" of complaints, 34 CFR § 106.8(b) (1997), and the Department of Education's Office of Civil Rights has detailed elements of an effective grievance process, with specific reference to sexual harassment, 62 Fed. Reg. 12034, 12044-12045 (1997).

The burden would be the school district's to show that its internal remedies were adequately publicized and likely would have provided redress without exposing the complainant to undue risk, effort, or expense. Under such a regime, to the extent that a plaintiff unreasonably failed to avail herself of the school district's preventive and remedial measures, and consequently suffered avoidable harm, she would not qualify for Title IX relief.

524 U.S. 308, 141 L.Ed.2d 303

_bp8Gerald R. CARON, Petitioner,

v.

UNITED STATES. No. 97-6270.

Argued April 21, 1998.

Decided June 22, 1998.

Defendant was convicted before the United States District Court for the District of Massachusetts, William G. Young, J., of

Fund et al. as Amici Curiae 23 (same). Significantly, however, the District Judge in that case refused to enter a judgment on that verdict; the judge instead ordered a new trial on damages, limited lo medical and mental health treatment and special education expenses. See 887 F.Supp. 947, 957 (W.D.Tex.1995), rev'd, 101 F.3d 393 (C.A.5 1996).

2008 118 SUPREME COURT REPORTER 524 U.S. 308

possessing six rifles and shotguns in violation of federal statute forbidding a felon from possessing a firearm, and his sentence was enhanced based on one prior California conviction and three prior Massachusetts convictions. On appeal, the First Circuit Court of Appeals,, 77 F .3d 1, vacated the sentence and remanded. On remand, the District Court, 941 F.Supp. 238, disregarded the Massachusetts convictions in resentencing defendant, and the government appealed. The First Circuit reversed, and defendant sought certiorari which was granted. The Supreme Court, Justice Kennedy, held that Massachusetts law that permitted convicted felon whose civil rights had been restored to possess rifles but which restricted his right to carry handguns activated the "unless" clause of federal statute excluding previous conviction as predicate offense for sentence enhancement for a three-time violent felon who violates federal weapons possession statute, if the offender's civil rights have been restored, "unless such . . . restoration of civil rights expressly provides that the person may not . . . possess . .. firearms ," even though the case involved rifles and shotguns.

Affirmed.

Justice Thomas filed dissenting opm10n in which Justices Scalia and Souter joined.

Sentencing and Punishment e->1343 Massachusetts law that permitted con

victed felon whose civil rights had been restored to possess rifles but which restricted his right to carry handguns activated the "unless" clause of federal statute excluding previous conviction as predicate offense for sentence enhancement for a three-time violent felon who violates federal weapons possession statute, if the offender's civil rights have been restored, "unless such . .. restoration of civil rights expressly provides that the person may not . . . possess . . . firearms,'' even though case involved rifles and shotguns. 18 U.S.C.A. §§ 921(a)(20), 922(g)(l), 924(e); M.G.L.A. c. 140, §§ 121, 123, 129B, 129C, 131, 131A; c. 269, § 10.

• The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.

Syllabus*

Federal law forbids a person convicted of a serious offense to possess any firearm, 18 U.S.C. § 922(g)(l), and requires that a three-time violent felon who violates § 922(g) receive an enhanced sentence, § 924(e). However, a previous conviction is not a predicate for the substantive offense or the enhanced sentence if the offender's civil rights have been restored, "unless such . .. restoration . . . expressly provides that the person may not possess firearms." § 921(a)(20). Petitioner, who has an extensive criminal record, was convicted of possessing, inter alia, six rifles and shotguns in violation of § 922(g). The District Court enhanced his sentence based on one California conviction and three Massachusetts convictions, but the First Circuit vacated the sentence, concluding that his civil rights had been restored by operation of a Massachusetts law that permitted him to possess rifles but restricted his right to carry handguns. On remand, the District Court disregarded the Massachusetts convictions, finding that, because Massachusetts law allowed petitioner to possess rifles, § 921(a)(20)'s "unless clause" was not activated, and that the handgun restriction was irrelevant because the case involved rifles and shotguns. The First Circuit reversed, counting the convictions because petitioner remained subject to significant firearms restrictions.

Held: The handgun restriction activates the unless clause, making the Massachusetts convictions count under federal law. The phrase "may not . . . possess . . . firearms" must be interpreted under either of two "allor-nothing" approaches: either it applies when the State forbids one or more types of firearms, as the Government contends; or it does not apply if the State permits one or more types of firearms, regardless of the one possessed in the particular case. This Court agrees with the Government's approach, under which a state weapons limitation activates the uniform federal ban on possessing any firearms at all. Even if a State permit-

See Un ited States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.ct. 282, 287, 50 L.Ed. 499.


ted an offender to have the guns he pos- Justice KENNEDY delivered the opinion sessed, federal law uses the State's deterrni- of the Court. nation that the offender is more dangerous Under federal law, a person convicted of a than law-abiding citizens to impose its own crime punishable by more than one year in broader stricture. Under petitioner's ap- prison may not possess any firearm. 18 proach, if he had possessed a handgun in U.S.C. § 922(g)(l). If he has three violent violation of state law, the unless clause would felony convictions and violates the statute, he not apply because he could have possessed a must receive an enhanced sentence. § 924(e). rifle. This approach contradicts a likely, and A previous conviction is a predicate for neirational~9congressional intent. Congress, ther the substantive offense nor the sentence believing that existing state laws provided enhancement if the offender has had his civil less than positive assurance that a repeat rights restored, "unless such . . . restoration violent offender no longer poses an unaccep- of civil rights expressly provides that the table risk of dangerousness, intended to keep person may not . . . possess . . . f1rearms." guns away from all offenders who might § 921(a)(20). This is the so-called "unless cause harm, even if they were not deemed clause" we now must interpret. As the eldangerous by the States. Dickerson v. New lipses suggest, the statute is more Banner Institute, Inc., 460 U.S. 103, 119, ..ilJocomplex, but the phrase as quoted pres-120, 103 S.Ct. 986, 995-996, 74 L.Ed.2d 845. ents the issue for our decision. To provide the missing assurance, federal law must reach primary conduct not covered by state law. The fact that state law determines the restoration of civil rights does not mean that state law also controls the unless clause: As to weapons possession, the Federal Government has an interest in a single, national, protective policy, broader than required by state law. The rule of lenity does not apply here, since petitioner relies on an implausible reading of the congressional purpose. See United States v. Shabani, 513 U.S. 10, 17, 115 S.Ct. 382, 386, 130 L.Ed.2d 225. Pp. 2010-2012.

AffITmed.

KENNEDY, J., delivered the opinion of the Court, in which REHNQUI T, C.J., and STEVENS O'CONNOR, GIN BURG, and BREYER JJ., joined. THOMAS, J ., filed a dissenting opinion, in which SCALIA and

OUTER, JJ., joined, pos4 p. 2012.

Owen S. Walker, Boston, MA, for petitioner.

Jonathan Nuechterlein, Washington, DC, for respondent.

For U.S. Supreme Court briefs, see:

1998 WL 84383 (Pet.Brief)

The parties, reflecting a similar division among various Courts of Appeals, disagree over the interpretation of the unless clause in the following circumstance. What if the State restoring the offender's rights forbids possession of some firearms, say pistols, but not others, say rifles? In one sense, he "may not . . . possess . . . f1rearms" under the unless clause because the ban on specified weapons is a ban on "f1rearms." In another sense, he can possess firearms under the unless clause because the state ban is not absolute. Compare, e.g., United States v. Estrella, 104 F.3d 3, 8 (C.A.1) (adopting former reading), cert. denied, 521 U. . 1110, 117 S.Ct. 2494, 138 L.Ed.2d 1001 (1997), and United States v. Driscol~ 970 F.2d 1472, 14 0-11J81 (C.A.6 1992) (same), cert. denied 506 U. . 1083, 113 S.Ct. 1056, 122 L.Ed.2d 362 (1993), wit.h United ta.tes v. Q?.w.ll.s, 140 F.3cl 824, 26 (C.A.9 199 ) (en bane) (intermediate position), and United tates v. hoemakm; 2 F.3d 53, 55-56 (C.A.4 1993) (same), cert. denied, 510 U.S. 1047, 114 S.Ct. 698, 126 L.Ed.2d 665 (1994).

The Government contends the class of criminals who "may not . . . possess . . . firearms" includes those forbidden to have some guns but not others. On this reading, the restoration of rights is of no effect here, the previous offenses are chargeable, and petitioner's sentence must be enhanced. On appeal, the Government's position prevailed in


the Court of Appeals for the First Circuit, and we now affirm its judgment.

I

Petitioner Gerald Caron has an extensive criminal record, including felonies. In Massachusetts state court, he was convicted in 1958 of attempted breaking and entering at night and, in 1959 and 1963, of breaking and entering at night. In California state court, he was convicted in 1970 of assault with intent to commit murder and attempted murder.

In July 1993, petitioner walked into the home of Walter Miller, carrying a semiautomatic rifle. He threatened Miller,

..lfil1brandished the rifle in his face, and pointed it at his wife, his daughters, and his 3-year-old grandson. Police officers disarmed and arrested petitioner.

In September 1993, a federal agent called on petitioner at home to determine if he had other unlawful firearms. Petitioner said he had only flintlock or other antique weapons (not forbidden by law) and owned no conventional firearms. Federal law, the agent told him, forbade his possession of firearms and was not superseded by state law. In December 1993, agents executed a search warrant at petitioner's house, seizing six rifles and shotguns and 6,823 rounds of ammunition.

A federal jury convicted petitioner of four counts of possessing a firearm or ammunition after having been convicted of a serious offense. See 18 U.S.C. § 922(g)(l). The District Court enhanced his sentence because he was at least a three-time violent felon, based on his one California and three Massachusetts convictions. See § 924(e). Petitioner claimed the court should not have counted his Massachusetts convictions because his civil rights had been restored by operation of Massachusetts law. Massachusetts law allowed petitioner to possess rifles or shotguns, as he had the necessary firearm permit and his felony convictions were more than five years old. Mass. Gen. Laws §§ 140:123, 140:129B, 140:129C (1996). The law forbade him to possess handguns outside his home or business. See §§ 140:121, 140:131, 269:10.

At first, the District Court rejected the claim that Massachusetts had restored petitioner's civil rights. It held civil rights had to be restored by an offender-specific action rather than by operation of law. The First Circuit disagreed, vacating the sentence and remanding the case. United States v. Caron, 77 F.3d 1, 2, 6 (1996) (en bane). We denied certiorari. 518 U.S. 1027, 116 S.Ct. 2569, 135 L.Ed.2d 1085 (1996). On remand, the District Court, interpreting the unless clause of the federal statute, disregarded the Massachusetts convictions . ..lfil2It ruled Massachusetts law did not forbid petitioner's possession of firearms because he could possess rifles. 941 F.Supp. 238, 251- 254 (D.Mass. 1996). Though Massachusetts restricted petitioner's right to carry a handgun, the District Court considered the restriction irrelevant because his case involved rifles and shotguns. See ibid. The First Circuit reversed, counting the convictions because petitioner remained subject to significant firearms restrictions. We granted certiorari. 522 U.S. 1038, 118 S.Ct. 680, 139 L.Ed.2d 628 (1998).

II

A federal statute forbids possession of firearms by those convicted of serious offenses. An abbreviated version of the statute is as follows:

"It shall be unlawful for any person"(1) who has been convicted in any court

of, a crime punishable by imprisonment for a term exceeding one year;

"to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." 18 u.s.c. § 922(g).

Three-time violent felons who violate § 922(g) face enhanced sentences of at least 15 years' imprisonment. § 924(e)(l). "Violent felony" is defined to include burglary and other crimes creating a serious risk of physical injury. § 924(e)(2)(B)(ii). This term includes petitioner's previous offenses discussed above.


Not all violent felony convictions, however, count for purposes of § 922(g) or § 924(e). Until 1986, federal law alone determined whether a state conviction counted, regardless of whether the State had expunged the conviction._J.2pDickerson v. New Banner Institute, Inc., 460 U.S. 103, 119-122, 103 S.Ct. 986, 995-997, 74 L.Ed.2d 845 (1983). Congress modified this aspect of Dickerson by adopting the following language:

"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." § 921(a)(20).

The first sentence and the first clause of the second sentence define convictions, pardons, expungements, and restorations of civil rights by reference to the law of the convicting jurisdiction. See Beecham v. United States, 511 U.S. 368, 371, 114 S.Ct. 1669, 1670-1671, 128 L.Ed.2d 383 (1994).

Aside from the unless clause, the parties agree Massachusetts law has restored petitioner's civil rights. As for the unless clause, state law permits him to possess rifles and shotguns but forbids him to possess handguns outside his home or business. The question presented is whether the handgun restriction activates the unless clause, making the convictions count under federal law.

We note these preliminary points. First, Massachusetts restored petitioner's civil rights by operation of law rather than by pardon or the like. This fact makes no difference. Nothing in the text of§ 921(a)(20) requires a case-by-case decision to restore civil rights to this particular offender. While the term "pardon" connotes a case-by-case determination, "restoration of civil rights" does not. Massachusetts has chosen a broad rule to govern this situation, and federal law gives effect to its rule. All Courts of Appeals to ~ess314 the point agree. See Caron, 77

F.3d, at 2; McGrath v. United States, 60 F.3d 1005, 1008 (C.A.2 1995), cert. denied, 516 U.S. 1121, 116 S.Ct. 929, 133 L.Ed.2d 857 (1996); United States v. Han 20 F.3d 1066, 1068-1069 (C.A.10 1994); United States v. Glaser, 14 F.3d 1213, 1218 (C.A.7 1994); United States v. Thomas, 991 F.2d 206, 212-213 (C.A.5), cert. denied, 510 U.S. 1014, 114 S.Ct. 607, 126 L.Ed.2d 572 (1993); United States v. Dahms, 938 F.2d 131, 133-134 (C.A.9 1991); United States v. Essick, 935 F.2d 28, 30-31 (C.A.4 1991); United States v. Cassidy, 899 F.2d 543, 550, and n. 14 (C.A.6 1990).

Second, the District Court ruled, and petitioner urges here, that the unless clause allows an offender to possess what state law permits him to possess, and nothing more. Here, petitioner's shotguns and rifles were permitted by state law, so, under their theory, the weapons would not be covered by the unless clause. While we do not dispute the common sense of this approach, the words of the statute do not permit it. The unless clause is activated if a restoration of civil rights "expressly provides that the person may not . . . possess . . . firearms." 18 U.S.C. § 921(a)(20). Either the restorations forbade possession of "firearms" and the convictions count for all purposes, or they did not and the convictions count not at all. The unless clause looks to the terms of the past restorations alone and does not refer to the weapons at issue in the present case. So if the Massachusetts convictions count for some purposes, they count for all and bar possession of all guns.

III

The phrase "may not . . . possess . . . firearms," then, must be interpreted under either of what the parties call the two "all-ornothing" approaches. Either it applies when the State forbids one or more types of firearms, as the Government contends; or it does not apply if state law permits one or more types of firearms, regardless of the one possessed in the particular case.

...L15Under the Government's approach, a state weapons limitation on an offender activates the uniform federal ban on possessing


any firearms at all. This is so even if the guns the offender possessed were ones the State permitted him to have. The State has singled out the offender as more dangerous than law-abiding citizens, and federal law uses this determination to impose its own broader stricture.

Although either reading creates incongruities, petitioner's approach yields results contrary to a likely, and rational, congressional policy. If permission to possess one firearm entailed permission to possess all, then state permission to have a pistol would allow possession of an assault weapon as well. Under this view, if petitioner, in violation of state law, had possessed a handgun, the unless clause would still not apply because he could have possessed a rifle. Not only would this strange result be inconsistent with any conceivable federal policy, but it also would arise often enough to impair the working of the federal statute. Massachusetts, in this case, and some 15 other States choose to restore civil rights while restricting firearm rights in part. The permissive reading would make these partial restrictions a nullity under federal law, indeed in the egregious cases with the most dangerous weapons. Congress cannot have intended this bizarre result.

Under petitioner's all-or-nothing argument, federal law would forbid only a subset of activities already criminal under state law. This limitation would contradict the intent of Congress. In Congress' view, existing state laws "provide less than positive assurance that the person in question no longer poses an unacceptable risk of dangerousness." Dickerson, 460 U.S., at 120, 103 S.Ct., at 996. Congress meant to keep guns away from all offenders who, the Federal Government feared, might cause harm, even if those persons were not deemed dangerous by States. See id., at 119, 103 S.Ct., at 995. If federal law is to provide the missing "positive assurance," it must reach primary conduct not covered by state law. The nee<!b!6for this caution is borne out by petitioner's rifle attack on the Miller family, in which petitioner used a gun permitted by state law. Any other result would reduce federal law to a sentence enhancement for some state-law violations, a result inconsistent with the con-

gressional intent we recognized in Dickerson. Permission to possess one gun cannot mean permission to possess all.

Congress responded to our ruling in Dickerson by providing that the law of the State of conviction, not federal law, determines the restoration of civil rights as a rule. While state law is the source of law for restorations of other civil rights, however, it does not follow that state law also controls the unless clause. Under the Government's approach, with which we agree, the federal policy still governs the interpretation of the unless clause. We see nothing contradictory in this analysis. Restoration of the right to vote, the right to hold office, and the right to sit on a jury turns on so many complexities and nuances that state law is the most convenient source for definition. As to the possession of weapons, however, the Federal Government has an interest in a single, national, protective policy, broader than required by state law. Petitioner's approach would undermine this protective purpose.

As a final matter, petitioner says his reading is required by the rule of lenity, but his argument is unavailing. The rule of lenity is not invoked by a grammatical possibility. It does not apply if the ambiguous reading relied on is an implausible reading of the congressional purpose. See United States v. Shaban~ 513 U.S. 10, 17, 115 S.Ct. 382, 386, 130 L.Ed.2d 225 (1994) (requiring use of traditional tools of statutory construction to resolve ambiguities before resorting to the rule of lenity). For the reasons we have explained, petitioner's reading is not plausible enough to satisfy this condition.

In sum, Massachusetts treats petitioner as too dangerous to trust with handguns, though it accords this right t2.laplaw-abiding citizens. Federal law uses this state finding of dangerousness in forbidding petitioner to have any guns. The judgment of the Court of Appeals is

Affirmed.

Justice THOMAS, with whom Justice SCALIA and Justice SOUTER join, dissenting.

The only limitation that Massachusetts law imposed on petitioner's possession of fire-


arms was that he could not carry handguns outside his home or business. See ante, at 2010. In my view, Massachusetts law did not "expressly provid[e]" that petitioner "may not . . . possess . . . firearms," 18 U.S.C. § 921(a)(20), and thus petitioner cannot be sentenced as an armed career criminal under § 924(e). Because the Court holds to the contrary, I respectfully dissent.

Petitioner's prior Massachusetts convictions qualify as violent felonies for purposes of § 924(e) only if the "restoration of [his] civil rights" by operation of Massachusetts law "expressly provide[d] that [petitioner) may not possess firearms." § 921(a)(20). In 1994, Massachusetts law did not expressly provide that petitioner could not possess firearms. To the contrary: Petitioner was permitted by Massachusetts law to possess shotguns, rifles, and handguns. See ante, at 2010; Mass. Gen. Laws. §§ 140:123, 140:129B, 140:129C (1996). Indeed, Massachusetts provided petitioner with a firearm identification card that enabled him to possess such firearms.* The only restriction Massachusetts law placed on petitioner's possession of firearms was that he could not carry handguns outside his home or business. See § 269:10(A). By prohibiting petitioner from p~ssing318 only certain firearms (handguns) in only certain places (outside his home or office), Massachusetts Jaw did not expressly provide that petitioner could not possess firearms.

The plain meaning of § 921(a)(20) thus resolves this case. The Court, however, rejects this plain meaning on the basis of "a likely, and rational, congressional policy" of prohibiting firearms possession by all exfelons whose ability to possess certain firearms is in any way restricted by state law. Ante, at 2012. According to the Court, Congress could not have intended the "bizarre result" that a conviction would not count as a violent felony if a State only partially restricts the possession of firearms by the exfelon. But this would not be a bizarre result at all. Under § 921(a)(20), state-law limita-

*Petitioner was "entitled to" a firearm identification card five years after his release from prison. See Mass. Gen. Laws § 140:129B (1996); see also Commonwealth v. Landry, 6 Mass.App. 404,

tions on firearms possession are only relevant once it has been established that an exfelon's other civil rights, such as the right to vote, the right to seek and to hold public office, and the right to serve on a jury, have been restored. See 77 F.3d 1, 2 (C.A.11996). In restoring those rights, the State has presumably deemed such ex-felons worthy of participating in civic life. Once a State makes such a decision, it is entirely rational (and certainly not bizarre) for Congress to authorize the increased sentences in § 924(e) only when the State additionally prohibits those ex-felons from possessing firearms altogether.

Moreover, as the Court concedes, its own interpretation creates "incongruities." Ante, at 2012. Under the statute, whether a prior state conviction qualifies as a violent felony conviction under § 924(e) turns entirely on state law. Given the primacy of state law in the statutory scheme, it is bizarre to hold that the legal possession of firearms under state law subjects a person to a sentence enhancement under federal law. That, however, is precisely the conclusion the Court reaches in this case. It is simply not true, as the Court reasons, that federal law "must reach primary conduct not covered by state law." Ibid. It is entirely plausible that Congress simply intended to create stiffer penalties foi:b! 9weapons possessions that are already illegal under state law. And such a purpose is consistent with the statutory direction that state Jaw controls what constitutes a conviction for a violent felony.

I believe that the plain meaning of the statute is that Massachusetts did not "expressly provid[e)" that petitioner "may not ... possess ... firearms." At the very least, this interpretation is a plausible one. Indeed, both the Government and the Court concede as much. See Brief for United States 16 ("grammatically possible" to read statute to say that its condition is not satisfied if the State does permit its felons to possess some firearms); ante, at 2012 (this "reading is not plausible enough"). Accordingly, it is far from clear under the statute

406, 376 N.E.2d 1243, 1245, (1978) (firearm identification card can be obtained as a "matter of right").


that a prior state conviction counts as a violent felony conviction for purposes of § 924(e) just because the State imposes some restriction, no matter how slight, on firearms possession by ex-felons. The rule of lenity must therefore apply: "[T]he Court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what CongTess intended." Ladner v. United States, 358 U.S. 169, 178, 79 S.Ct. 209, 214, 3 L.Ed.2d 199 (1958). Ex-felons cannot be expected to realize that a federal statute that explicitly relies on state law prohibits behavior that state law allows.

The Court rejects the rule of lenity in this case because it thinks the purported statutory ambiguity rests on a "grammatical possibility" and "an implausible reading of the congressional purpose." Ante, at 2012. But the alleged ambiguity does not result from a mere grammatical possibility; it exists because of an interpretation that, for the reasons I have described, both accords with a natural reading of the statutory language and is consistent with the statutory purpose.

The plain meaning of § 921(a)(20) is that Massachusetts law did not "expressly provid[e] that [petitioner] may not ~0possess ... firearms." This interpreta

tion is, at the very least, a plausible one, and the rule of lenity must apply. I would therefore reverse the judgment below.

524 U.S. 357, 141 L.Ed.2d 344

~7PENNSYLVANIA BOARD OF PROBATION AND PAROLE,

Petitioner,

v.

Keith M. SCOTT. No. 97-581.

Argued March 30, 1998.

Decided June 22, 1998.

Parolee sought review of an administrative order of the Pennsylvania Board of Pro-

bation and Parole, Parole No. 4488-X, denying his request for administrative relief from the Board's revocation decision. The Commonwealth Court, No. 3093 C.D. 1994, 668 A.2d 590, reversed and remanded. The Commonwealth's petition for allowance of appeal was granted. The Pennsylvania Supreme Court, No. 66 M.D. 1996, 548 Pa. 418, 698 A.2d 32, held that the exclusionary rule will apply in a parole revocation hearing if the officer conducting a search is aware or has reason to be aware of a suspect's parole or probationary status, and lacks reasonable suspicion of a parole violation justifying the search. Certiorari was granted. The Supreme Court, Justice Thomas, held that parole boards are not required by federal law to exclude evidence obtained in violation of the Fourth Amendment.

Reversed and remanded.

Justice Stevens filed a dissenting opin-ion.

Justice Souter filed a dissenting opinion, in which Justices Ginsburg and Breyer joined.

1. Criminal Law ~394.4(1)

State's use of evidence obtained in violation of Fourth Amendment does not itself violate the Constitution. U.S.C.A. Const. Amend. 4.

2. Administrative Law and Procedure e::>461

Criminal Law ~394.4(1)

Fourth Amendment violation is fully accomplished by illegal search or seizure, and no exclusion of evidence from judicial or administrative proceeding can cure the invasion of suspect's rights which he has already suffered. U.S.C.A. Const.Amend. 4.

3. Criminal Law e:->394.4(1)

Exclusionary rule is judicially created means of deterring illegal searches and seizures. U.S.C.A. Const.Amend. 4.

4. Criminal Law e:->394.4(1)

Exclusionary rule does not proscribe introduction of illegally seized evidence in all

511 U.S. 368 BEECHAM v. U.S. 1669 Cite as 114 S.Ct. 1669 (1994)

511 U.S. 368, 128 L.Ed.2d 383

~enard Ray BEECHAM, Petitioner,

v.

UNITED STATES.

Kirby Lee JONES, Petitioner,

v.

UNITED STATES. No. 93-445.

Argued March 21, 1993.

Decided May 16, 1994.

The United States District Court for the Northern District of West Virginia and the United States District Court for the Eastern District of North Carolina dismissed indictments charging defendants with being felons in possession of firearm, and government appealed in each case. The Court of Appeals for the F ourth Circuit, 993 F.2d 1131 and 993 F.2d 1539, reversed in each case, and certiorari was granted. The Supreme Cowt, Justice O'Connor, held that state's r~toration of convicted felon's civil rights does not remove disability of firearm possession imposed by federal law as a result of federal conviction.

Affirmed.

1. Weapons e=>4

State's restoration of convicted felon's civil rights does not remove disability of firearm possession imposed by federal law as a result of fedel'al conviction; accordingly, convicted felon can take advantage of exemption from prosciiption on possession of firearm by felon only if bis civil rights had been restored under federal law, the law of the jwisdiction where the earlier proceedings were held. 18 U.S.C.A. §§ 92l(a)(20), 922(g).

2. Statutes e=>24l(l)

Where statutory language was unambiguous, rule of lenity did not apply.

• 111e syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decis ions for the convenience of the reader.

SyUabus *

Petitioners Beecham and Jones were each convicted of violating 18 U.S.C. § 922(g), which makes it unlawful for a convicted felon to possess a firearm. Title 18 U.S.C. § 921(a)(20) qualifies the definition of "conviction": "What constitutes a conviction [is] determined in accordance with the law of the jurisdiction in which the proceedings were held," ibid. (choice-of-law clause), and "[a]ny 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 . .. ," ibid. (exemption clause). The respective District Courts decided that Beecham's and Jones' prior federal convictions could not be counted because petitioners' civil rights had been restored under state law. The Court of Appeals reversed, holding that state restoration of civil rights could not undo the federal disability flowing from a federal conviction.

HeU: Petitioners can take advantage of § 921(a)(20) only if their civil rights have been restored under federal law, the law of the jurisdiction where the earlier proceedings were held. The choice-of-law clause is logically read to apply to the exemption clause. The inquiry throughout the statutory scheme is whether the person has a qualifying conviction on his record. The choice-of-law clause defines the rule for determining what constitutes a conviction. Asking, under the exemption clause, whether a person's civil tights have been restored is just one step in determining whether something should "be considered a conviction," a determination that, by the terms of the choice-of-law clause, is governed by the law of the convicting jurisdiction. That the other three items listed in the exemption clause are either always or almost always done by the jurisdiction of conviction also counsels in favor of interpreting civil rights restoration as possessing the same attribute. This st.atutory structure rebuts the arguments used by other Circuits to

See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499.


support their conclusion that the two clauses should be read separately. Moreover, even if there is no federal law procedure for restoring civil rights to federal felons, nothing in § 921(a)(20) supports the assumption that

...J.§§9Congress intended all felons to have access to all the procedures specified in the exemption clause, especially because there are many States that do not restore civil rights, either. Because the statutory language is unambiguous, the rule of lenity is inapplicable. See Chapman v. United States, 500 U.S. 453, 463-464, 111 S.Ct. 1919, 1926-1927, 114 L.Ed.2d 524. Pp. 1670-1672.

993 F.2d 1539 (first case) and 993 F.2d 1131 (CA4 1993), (second case), affirmed.

O'CONNOR, J., delivered the opinion for a unanimous Court.

Nathan Lewin, Washington, DC, argued for petitioners.

Edward C. DuMont, Washington, DC, argued for respondent.

For U.S. Supreme Court briefs, see:

1994 WL 96878 (Pet.Brief)

1994 WL 96876 (Resp.Brief)

1994 WL 82035 (Reply.Brief)

Justice O'CONNOR delivered the opinion of the Court.

Today we construe three provisions of the federal firearms statutes:

"It shall be unlawful for any person who has been convicted ... [of] a crime punishable by imprisonment for a term exceeding one year . . . [to possess] any firearm .... " 18 u.s.c. § 922(g).

"What constitutes a conviction . . . shall be determined in accordance with the law of the jurisdiction in which the proceedings were held." § 921(a)(20) (the choice-of-law clause).

"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 .... " Ibid. (the exemption clause).

The question before us is which jurisdiction's law is to be considered in determining wheth-

er a felon "has had civil rights restored" for a prior federal conviction.

..,Wol Each of the petitioners was convicted of

violating § 922(g). Beecham was convicted in Federal District Court in North Carolina, Jones in Federal District Court in West Virginia. Beecham's relevant prior conviction was a 1979 federal conviction in Tennessee, for violating 18 U.S.C. § 922(h). App. 11. Jones' prior convictions were two West Virginia state convictions, for breaking and entering and for forgery, and one 1971 federal conviction in Ohio for interstate transportation of a stolen automobile. Id., at 19-20.

Jones had gotten his civil rights restored by West Virginia, so his two West Virginia state convictions were not considered. Beecham claimed his civil rights had been restored by Tennessee, the State in which he had been convicted of his federal offense. The question presented to the District Courts was whether these restorations of civil rights by States could remove the disabilities imposed as a result of Beecham's and Jones' federal convictions.

In both cases, the District Courts concluded the answer was "yes," though for different reasons: In Beecham's case the court looked to the law of the State in which the earlier federal crime was committed (Tennessee); in Jones' case the court looked to the law of the State in which Jones lived when he committed the § 922(g) offense (West Virginia). The Fourth Circuit reversed both rulings, reasoning that state restoration of civil rights could not undo the federal disability flowing from a federal conviction. See 993 F.2d 1131 (1993) (Jones' case) and 993 F.2d 1539 (1993) (judgt. order in Beecham's case). We granted certiorari to resolve the conflict this decision created with United States v. Edwards, 946 F.2d 1347 (CA8 1991), and United States v. Geyler, 932 F.2d 1330 (CA9 1991). 510 U.S. 975, 114 S.Ct. 466, 126 L.Ed.2d 418 (1993).

II

The question in these cases is how the choice-of-law clause and the exemption clause of § 921(a)(20) are related. If, as..,W1the Fourth Circuit held, the choice-of-law clause

511 U.S. 372 BEECHAM v. U.S. 1671 Cite as 114 S.Ct. 1669 (1994)

applies to the exemption clause, then we must look to whether Beecham's and Jones' civil rights were restored under federal law (the law of the jurisdiction in which the earlier proceedings were held). On the other hand, if, as the Eighth and Ninth Circuits concluded, the two clauses ought to be read separately, see Geyler, supra, at 1334-1335; Edwards, supra, at 1349-1350, then we would have to come up with a special choiceof-law principle for the exemption clause.

[1] We think the Fourth Circuit's reading is the better one. Throughout the statutory scheme, the inquiry is: Does the person have a qualifying conviction on his record? Section 922(g) imposes a disability on people who "ha[ve) been convicted." The choice-oflaw clause defines the rule for determining "[w]hat constitutes a conviction." The exemption clause says that a conviction for which a person has had civil rights restored "shall not be considered a conviction." Asking whether a person has had civil tight~

restored is thus just one step in deteimining whether something should "be considered a conviction." By the terms of the choice-oflaw clause, this detennination is governed by the law of the convicting jurisdiction.

This interpretation is supported by the fact that the other three procedures listed in the exemption clause-pardons, expungements, and set-asides-are either always or almost always (depending on whether one considers a federal grant of habeas corpus to be a "setaside," a question we do not now decide) done by the jurisdiction of conviction. That several items in a list share an attribute counsels in favor of interpreting the other items as possessing that attribute as well. Dole v. Steelworkers, 494 U.S. 26, 36, 110 S.Ct. 929, 934-935, 108 L.Ed.2d 23 (1990); Third Nat. Bank in Nashville v. Impac Limited. Inc., 432 U.S. 312, 322, 97 S.Ct. 2307, 2313, 53 L.Ed.2d 368 (1977); Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 1582, 6 L.Ed.2d 859 (1961). Though this canon of construction is by no means a hard and fast rule, it is a factor pointing toward the Fourth Circuit's construction of the statute.

.J.a.72Ih light of the statutory structure, the fact that both clauses speak of "conviction[s]" rebuts the Eighth and Ninth Circuits' argument that the two clauses "pertain to two entirely different sets of circumstances" -"the question of what constitutes a conviction" and "the effect of post-conviction events." Geyf,er, supra, at 1334-1335; see also Edwards, supra, at 1349. The exemption clause does not simply say that a person whose civil rights have been restored is exempted from § 922(g)'s firearms disqualification. It says that the person's conviction "shall not be considered a conviction." The effect of postconviction events is therefore, under the statutory scheme, just one element of the question of what constitutes a conviction.

Likewise, the presence of the choice-of-law clause rebuts the Eighth and Ninth Circuits' argument that the "plain, unlimited language," Edwards, supra, at 1349; see also Geyler, sup1·a, at 1334, of the exemption clause-with its reference to "[ a]ny conviction . . . for which a person has . . . had civil rights restored" (emphasis added)-refers to all civil rights restorations, even those by a jurisdiction other than the one in which the conviction was entered. Regardless of what the quoted phrase might mean standing alone, in conjunction with the choice-of-law clause it must refer only to restorations of civil rights by the convicting jurisdiction. The plain meaning that we seek to discern is the plain meaning of the whole statute, not of isolated sentences. See King v. St. Vincent's Hospita~ 502 U.S. 215, 221, 112 S.Ct. 570, 574, 116 L.Ed.2d 578 (1991); Massachusetts v. Morash, 490 U.S. 107, 115, 109 S.Ct. 1668, 1673, 104 L.Ed.2d 98 (1989); Shell Oil Co. v. Iowa Dept. of Revenue, 488 U.S. 19, 26, 109 S.Ct. 278, 282, 102 L.Ed.2d 186 (1988).

We are also· unpersuaded by the Ninth Circuit's argument that "[b]ecause there is no federal procedure for restoring civil rights to a federal felon, Congress could not have expected that the federal government would perform this function," and that therefore


"[t]he reference in § 921(a)(20) to the restoration of civil rights must be to the state procedure." _biaGeyler, 932 F.2d, at 1333.* This reasoning assumes that Congress intended felons convicted by all jurisdictions to have access to all the procedures (pardon, expungement, set-aside, and civil rights restoration) specified in the exemption clause; but nothing in § 921(a)(20) supports the assumption on which this reasoning is based. Many jurisdictions have no procedure for restoring civil rights. See Apps. A and B to Brief for Petitioners (indicating that at least 11 States-Arkansas, Indiana, Kentucky, Maryland, Missouri, New Jersey, Oklahoma, Pennsylvania, Texas, Vermont, and Virginia suspend felons' civil rights but provide no procedure for restoring them); see, e.g., Mo. Rev.Stat. § 561.026 (1979 and Supp.1994); United States v. Thomas, 991 F.2d 206, 213-214 (CA5) (Texas law), cert. denied, 510 U.S. 1014, 114 S.Ct. 607, 126 L.Ed.2d 572 (1993). However one reads the statutory scheme-as looking to the law of the convicting jurisdiction, or to the law of the State in which the prior conduct took place, or to the law of the State in which the felon now lives or has at one time lived-people in some jurisdictions would have options open to them that people in other jurisdictions may lack. Under our reading of the statute, a person convicted in federal court is no worse off than a person convicted in a court of a State that does not restore civil rights.

[2] ..hJ4Because the statutory language is unambiguous, the rule of lenity, which petitioners urge us to employ here, is inapplicable. See Chapnw,n v. United States, 500 U.S. 453, 463-464, 111 S.Ct. 1919, 1926-1927, 114 L.Ed.2d 524 (1991). Of course, by denying the existence of an ambiguity, we do not

* We express no opinion on whether a federal felon cannot have his civil rights restored under federal law. This is a complicated question, one which involves the interpretation of the federal law relating to federal civil rights, see U.S. Const., Art. I, § 2, cl. 1 (right to vote for Representatives); U.S. Const., Arndt. XVII (right to vote for Senators); 28 U.S.C. § 1865 (right to serve on a jury); consideration of the possible relevance of 18 U.S.C. § 92S(c) (1988 ed., Supp. IV), which allows the Secretary of the Treasury

claim to be perfectly certain that we have divined Congress' intentions as to this particular situation. It is possible that the phrases on which our reading of the statute turns"[ w ]hat constitutes a conviction" and "shall not be considered a conviction"-were accidents of statutory drafting; it is possible that some legislators thought the two sentences of § 921(a)(20) should be read separately, or, more likely, that they never considered the matter at all. And we recognize that in enacting the choice-of-law clause, legislators may have been simply responding to our decision in Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983), which held that federal law rather than state law controls the definition of what constitutes a conviction, not setting forth a choice-of-law principle for the restoration of civil rights following a conviction.

But our task is not the hopeless one of ascertaining what the legislators who passed the law would have decided had they reconvened to consider petitioners' particular cases. Rather, it is to determine whether the language the legislators actually enacted has a plain, unambiguous meaning. In this instance, we believe it does.

III We therefore conclude that petitioners can

take advantage of § 921(a)(20) only if they have had their civil rights restored under federal law, and accordingly affirm the judgment of the Court of Appeals.

So ordered.

to grant relief from the disability imposed by § 922(g); and the determination whether civil rights must be restored by an affirmative act of a Government official. see United States v. Ramos, 961 F.2d 1003, 1008 (CAl), cert. denied, 506 U.S. 934, 113 S.Ct. 364, 121L.Ed.2d277 (1992), or whether they may be restored automatically by operation of law, see United States v. Hall, 20 F.3d 1066 (CAIO 1994). We do not address these matters today.


UNITED STATES of America, Plaintiff,

v.

Kozo WADA, Defendant.

No. CR 03-96-BR.

United States District Court, D. Oregon.

June 29, 2004. Background: Defendant entered plea of guilty to charges of dealing in firearms without federal firearms license and exporting defense articles without proper license. Holding: The District Court, Brown, J., held that dewatted firearm-ornaments that defendant sold were not "firearms" for sentencing purposes. Ordered accordingly.

Sentencing and Punishment ~705 Dewatted firearm-ornaments that de

fendant sold were not "firearms," for purposes of calculating base offense level following defendant's convictions for dealing in firearms without federal firearms license and exporting defense articles without proper license, even if items were at one time operable firearms, and it was possible to modify items to restore their capacity to fire projectiles, where, as result of defendant's modification methods, each item no longer could expel projectile by action of explosive, and could not readily be converted to do so. 18 U.S.C.A. § 921(a)(3); U.S.S.G. § 2K2.l(b)(l)(D), 18 U.S.C.A.

See publication Words and Phrases for other judicial constructions and definitions.

Karin J. Immergut, United States Attorney, Fredric N. Weinhouse, Assistant

1. North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

United States Attorney, Portland, OR, for Plaintiff.

Steven T. Wax, Federal Public Defender, Christopher J. Schatz, Assistant Federal Public Defender, Portland, OR, for Defendant.

AMENDED OPINION AND ORDER

BROWN, District Judge.

In an Indictment dated February 25, 2003, the Grand Jury charged Defendant Kozo Wada with eleven felony counts of various firearms offenses and two counts seeking forfeiture of firearms, ammunition, and other property seized in the course of this investigation.

On December 12, 2003, Wada tendered, and the Court accepted, Alford 1 pleas to Counts One and Five of the Indictment, as amended, pursuant to the terms of a Settlement Agreement between the parties. The Court then found Wada guilty of Count One (Dealing in Firearms without a Federal Firearms License in violation of 18 U.S.C. § 922(a)(l)(A)) and Count Five (Exporting a "Defense Article" [a firearm] from the United States to Japan Without a Department of State License in violation of 22 U.S.C. §§ 2778(b)(2) and 2778(c) and certain Title 22 federal regulations).

The parties' Settlement Agreement provides the Court is to determine whether United States Sentencing Guideline (USSG) § 2K2.l(b)(l)(D) should be applied, which would increase by eight levels the base offense level for Count One. This enhancement applies if "the offense involved ... 100-199 ... " firearms. Id. The parties disputed the facts pertinent to this specific offense characteristic. The Court, therefore, conducted an evidentiary hearing on March 10, 2004; heard oral argument on April 16, 2004; and thereafter considered the parties' written submissions. 2

2. After the evidentiary hearing, the Supreme Court issued an opinion in Blakely v. WashTington in which the Court held "every defen-


For the reasons that follow, the Court concludes the government has not established by clear and convincing evidence that the items it seeks to count as "firearms" pursuant to USSG § 2K2.l(b)(l)(D) were, in fact, "firearms" as defined by the pertinent statute at the time Wada sold and shipped them to his customers in Japan. Instead the Court agrees with Wada, who characterized these items as "dewatted firearm-ornaments." The Court, therefore, finds USSG § 2K2.l(b)(l)(D) does not apply to enhance the base offense level for Count One because the "dewatted firearm-ornaments" that Wada sold as part of his business do not count as firearms under USSG § 2K2.l(b)(l)(D).3

THE LAW

1. Statutes

18 U.S.C. § 922(a)(l) provides: It shall be unlawful for any person except a ... licensed dealer, to engage in the business of . . . dealing in firearms,

18 U.S.C. § 921(a)(ll)(A) provides: The term "dealer" means any person engaged in the business of selling firearms at wholesale or retail ....

18 U.S.C. § 921(a)(21)(C) provides: The term "engaged in the business" means . . . as applied to a dealer in firearms . . . a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of

dant has the right to insist that the prosecutor prove to a jury [beyond a reasonable doubt] all facts legally essential to the punishment." - U.S. --, --, 124 S.Ct. 2531, 159 L.Ed.2d 403, 2004 WL 1402697, at *9 (2004)(emphasis in original). In light of this holding, Wada has the right to have a jury determine the number of firearms involved in Count One. Nonetheless, the Court issues this Opinion and Order in light of the fact that the Court finds in favor of Defendant on this

livelihood and profit through the repetitive purchase and resale of firearms,

18 U.S.C. § 921(a)(3) provides:

The term "firearm" means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.

2. Burden of Proof

Because the addition of eight levels to the base offense level for Count One would more than double the potential sentencing range for that Count, the parties agreed the Court must base its factual findings on a standard of clear and convincing evidence. See United States v. Valensia, 222 F.3d 1173, 1179 (9th Cir.2000). The parties' agreement, however, was reached before the Supreme Court decided Blakely.

FINDINGS OF FACT

The parties made certain factual stipulations during the proceedings on April 16, 2004, and, accordingly, the Court accepts such facts as true for purposes of this analysis. In addition, the Court has weighed and evaluated all of the evidence presented in connection with this sentencing issue. Based on the parties' stipula-

issue, which was raised and argued before Blakely and which, therefore, does not require a different procedure under the circumstances of this case.

3. The Court will resolve at Wada's sentencing hearing all of the other sentencing issues raised in Wada's memoranda, including the appropriate base offense level and Wada's arguments in support of his various requests for a downward departure.


tions and the Court's assessment of the record, the Court finds the following facts by clear and convincing evidence:

1. Wada, a Japanese citizen, was engaged in business in Oregon under the name of "U S Mart Co." Beginning in the year 2000, Wada became interested in selling military accessories and other merchandise to buyers in Japan. After he contacted police authorities in Osaka, Wada understood Japanese law would permit him to sell "dewatted firearm-ornaments" to such buyers; that is, "firearms" that he modified to render them inoperable before he shipped them to Japan.

2. In the course of his business, Wada purchased more than 100 firearms in Oregon; paid a federally licensed gunsmith, Roger Loock, to modify them to render them inoperable; and then sold and shipped the firearms as modified to purchasers in Japan.

3. The methods Wada used to modify these firearms changed their fundamental character and rendered them inoperable as functioning firearms. The Court adopts as part of its findings all of the evidence Wada offered concerning the several methods he used for this purpose and his evidence showing the extreme difficulty and unlikelihood that, once modified, any such former "firearm" could readily be restored to functional use.

4. The following are examples of Wada's modifications of the firearms: Wada had Roger Loock modify a firearm by cutting the frame of the firearm vertically or by removing and deactivating the slide rail from the top of a semi-automatic handgun as described in Exhibit A to Wada's Evidentiary Hearing and Sentencing Memorandum. In addition, Wada used several methods to modify the barrels of semi-automatic handguns, which included cutting a slot out of the barrel and welding a metal rod to the barrel or drilling a hole on one side of the barrel and

inserting a hardened metal pin into the barrel and through a steel rod.

5. After a "firearm" was "deactivated" by one of Wada's methods, it would take a great deal of time, expertise, equipment, and materials to attempt to reactivate the item so that it could "expel a projectile by the action of an explosive." As a result of Wada's modification methods, each "firearm" (a) no longer was "designed to ... expel a projectile by the action of an explosive," (b) could not "readily be converted" to do so, and (c) was no longer "the frame or receiver" of a weapon that was "designed to or ... [could] readily be converted to expel a projectile by the action of an explosive." The Court, therefore, finds unconvincing the government's evidence that such modified firearms could "readily" be returned to functional use.

DISCUSSION

According to the government, USSG § 2K2.l(b)(l)(D) applies to Count One because the "dewatted firearm-ornaments" that Wada sold fit the definition of "firearm" under federal law when he sold them, and, therefore, they should be counted for purposes of this specific offense characteristic.

Applying the definition of "firearm" in 18 U.S.C. § 921(a)(3) to the items Wada sold in the course of his business, the government asserts it need only prove by clear and convincing evidence any of the following to justify the application of USSG § 2K2.l(b)(l)(D) to Count One: (1) each item to be counted "was" designed to expel a projectile by an action of an explosive, or (2) each item ''will" expel a projectile by the action of an explosive, or (3) each item "was" the frame or receiver of any such weapon. The Court, however, disagrees with the government's statutory interpretation and construction.


With respect to the government's first asserted option, the Court notes 18 U.S.C. § 921(a)(3)(A) is not written in the past tense and, in particular, does not speak in terms of whether an item ''was" designed to expel a projectile. The statute explicitly applies to any weapon that "will," "is designed to," or "may readily be converted to" expel a projectile. These words''will," "is designed to," and "may readily be converted to"-must be given their ordinary meaning. See Bailey v. United States, 516 U.S. 137, 144-45, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) (citations omitted). Under any ordinary interpretation, ''will" does not mean "was," "is designed to" does not mean ''was designed to," and "may readily be converted to" does not mean ''was converted to." Thus, the Court rejects the government's argument that USSG § 2K2.l(b)(l)(D) applies to Count One on the ground that each of the modified "firearms" originally was designed to expel a projectile by the action of an explosive.

With respect to the government's second asserted option, the Court concludes the government has not proved by clear and convincing evidence that each item, as modified, ''will" expel a projectile by the action of an explosive. Although there is some evidence that it is not impossible for a person to modify such a "firearm" to restore its capacity to fire a projectile if he invested significant time and effort and acquired all of the parts and equipment necessary to do so, that evidence is not sufficient to prove the item ''will" expel a projectile or could "readily be converted" to do so. Indeed, the whole point of Wada's extensive modification efforts was to render each "ornament" inoperable as a "firearm," and Wada's evidence proves he effectively did so.

4. Because the Court adopts Wada's primary analysis opposing application of USSG

Finally, the government's third asserted option also is not supported by the ordinary meaning of the words in the statute. Although 18 U.S.C. § 921(a)(3)(B) defines as a firearm "the frame or receiver of any such weapon," and each of the items as modified by Wada includes a "frame" or a "receiver," the government's argument fails because only the frame or receiver of "any such weapon" qualifies. For the reasons already stated, these items as modified are not included in the definition of "any such weapon."

In summary, the Court agrees with Wada and finds the changes Wada made to each modified firearm fundamentally altered its characteristics to such a degree that it no longer was a "firearm" as defined under federal law by the time it was sold and shipped to Wada's customers in Japan. Thus, the Court finds these "dewatted firearm ornaments" do not qualify for purposes of the specific offense characteristic set forth in USSG § 2K2.l(b)(l)(D).4

IT IS SO ORDERED.

In re ADOPTION OF BABY C, a minor child.

No. 04-4044-SAC.

United States District Court, D. Kansas.

June 10, 2004.

Background: Adoptive parties filed petition for adoption in state court. After bio-

§ 2K2.1 (b)(l)(D), the Court need not address Wada's alternative arguments.


bury's claim was barred by procedural default. It was presented, and rejected by the state courts. We express no opinion on the merits of this claim because it was not reached by the district court. We hold only that it was not procedurally defaulted.

BURDEN OF PROOF

[5] As to Lounsbury's procedural claim on the allocation of the burden of proof, we agree with the district court that the state trial court reasonably applied federal law. See Medina v. California, 505 U.S. 437, 451, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992) (holding that the state need not assume the burden of proof and that "it is enough that the State affords the criminal defendant . .. a reasonable opportunity to demonstrate that he is not competent to stand trial."). The district court did not err in holding that the state court gave Lounsbury a full opportunity to show that he was incompetent.

Because the error in declaring a procedural default kept the district court from deciding Lounsbury's substantive competency claim, however, we remand this case to the district court to give it the opportunity to decide whether the state court denied Lounsbury due process in finding him competent to stand trial.

REVERSED and REMANDED.

UNITED STATES of America, Plaintiff-Appellee,

v.

Eileen CROWELL, DefendantAppellant.

No. 03-30041.


Argued and Submitted Nov. 6, 2003.

Filed June 30, 2004.

Background: Movant sought to expunge conviction for filing false tax return. The United States District Court for the District of Oregon, Malcolm F. Marsh, J., denied motion. Movant appealed.

Holding: The Court of Appeals, Jay S. Bybee, Circuit Judge, held that district court lacked jurisdiction to consider motion.

Affirmed.

1. Criminal Law e=>1226(1)

Court of Appeals reviews de novo district court's jurisdiction to entertain motion for expungement.

2. Criminal Law e=>1226(3.1)

Generally, when defendant moves to expunge records, she asks that court destroy or seal records of fact of defendant's conviction, and not conviction itself; accordingly, expungement, without more, does not alter legality of conviction and does not signify that defendant was innocent.


Federal courts have inherent authority to expunge criminal records in appropriate and extraordinary cases.

U.S. v. CROWELL 791 Cite as 374 F.3d 790 (9th Cir. 2004)

4. Criminal Law e=>1226(3.1, 4)

District court's ancillary jurisdiction to expunge criminal records is limited to expunging records of unlawful arrest or conviction, or to correcting clerical error. 18 U.S.C.A. § 3231.

5. Criminal Law e=>l226(3.1)

District court lacked jurisdiction to consider defendant's motion to expunge records of conviction for filing false tax return on equitable grounds, insofar as defendant had not obtained judgment vacating or otherwise setting aside conviction.

6. Criminal Law e=>996(2), 1586

District court has inherent jurisdiction within time allowed for appeal to modify its judgment for errors of fact or law or even to revoke judgment.


Even where conviction has been held unlawful and vacated, expungement remains narrow, extraordinary remedy, one appropriately used only in extreme circumstances.

Stephen R. Sady, Chief Deputy Federal Public Defender, Portland, OR, for the defendant-appellant.

Michael W. Mosman, United States Attorney, J . Richard Scruggs, Assistant United States Attorney, Portland, OR, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon; Malcolm F. Marsh, District Judge, Presiding. D.C. No. CR-90-00263-MFM.

Before ALARC6N, RAWLINSON, and BYBEE, Circuit Judges.

BYBEE, Circuit Judge:

This case presents the question whether a person convicted of a crime may collaterally attack her conviction by moving to expunge the records of her conviction. We hold that she cannot, and we affirm the judgment of the district court.

FACTS

In 1990, a federal grand jury indicted the defendant, Eileen Crowell, on six counts, based on allegations of conspiracy to manufacture, distribute and possess with intent to distribute live marijuana plants, see 18 U.S.C. § 2; 21 U.S.C. §§ 841, 846, and the filing of false tax returns for 1986, 1987, and 1988, see 26 U.S.C. § 7206. The indictment also charged her husband and a third defendant.

After extensive negotiations, Crowell entered an Alford plea-that is, she pied guilty while maintaining that she was innocent, see North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)-to the single charge of filing a false tax return for 1986. Crowell appeared for sentencing in district court in 1991. The Government presented the evidence that it believed supported the Defendant's plea on the tax charge. Considering the Government's evidence against her, the district court found that there was an adequate factual basis for Crowell's plea. See id. at 37-38, 91S.Ct.160.

The district court carefully questioned Crowell to determine whether she understood the nature of the charges against her. See United States v. Timbana, 222 F.3d 688, 702-03 (9th Cir.2000). Under penalty of perjury, Crowell affirmed that she understood and that her plea was voluntary. The court proffered extra time to Crowell in case she wanted to change her mind late in the pleading stage. After


satisfying itself that Crowell was voluntarily pleading guilty, the court entered judgment on Crowell's plea, dismissed the remaining counts against her, and sentenced her to three years probation.

Eleven years later, in 2002, Crowell filed a motion in her original criminal case to expunge her conviction. Crowell advanced three grounds for her motion: first, that there was an inadequate basis for her Alford plea; second, that her attorney had a conflict of interest because he had initially been hired to assist with her husband's defense; and third, that her Alford plea rested on financial records obtained from a search and seizure that was later declared unlawful at her husband's pre-trial hearing.1 The district court concluded that each of her claims lacked merit and denied her claims. Crowell timely appealed.

[1] We review de novo the district court's jurisdiction to entertain a motion for expungement. United States v. Sumner, 226 F.3d 1005, 1009 (9th Cir.2000). See also United States v. Bravo-Diaz, 312 F.3d 995, 997 (9th Cir.2002) (the court reviews de novo a district court's assertion of jurisdiction under the All Writs Act).

DISCUSSION

[2] A defendant who moves to expunge her conviction does not seek to vacate or set aside her conviction. "Expunge" (to erase) and "vacate" (to nullify or to cancel) denote very different actions by the court. When a court vacates a conviction, it sets aside or nullifies the conviction and its attendant legal disabilities; the court does not necessarily attempt to erase the fact of the conviction. See Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 114-22, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983).

1. Crowell's husband initially pied guilty, and then subsequently withdrew his plea. After negotiating a new plea agreement, Crowell's

In contrast, a defendant who seeks expungement requests "the judicial editing of history." Rogers v. Slaughter, 469 F.2d 1084, 1085 (5th Cir.1972). Although "expungement" may mean different things in different states, in general when a defendant moves to expunge records, she asks that the court destroy or seal the records of the fact of the defendant's conviction and not the conviction itself. See United States v. Sweeney, 914 F.2d 1260, 1262 (9th Cir.1990) ("an expunction order is similar to an order not to report a conviction"); United States v. Johnson, 941 F.2d 1102, 1111 (10th Cir.1991) ("expunge" refers to the physical destruction of information with respect to criminal records). See also Dickerson, 460 U.S. at 121-22, 103 S.Ct. 986 (noting that the variety of state expungement statutes creates "nothing less than a national patchwork"). Accordingly, expungement, without more, "does not alter the legality of the previous conviction and does not signify that the defendant was innocent of the crime to which he pleaded guilty." Id. at 115, 103 S.Ct. 986.

We have recognized two sources of authority by which courts may expunge records of criminal conviction: statutes and our inherent authority. By statute, Congress has set the conditions by which the courts may expunge records of federal convictions in particular cases. For example, Congress has directed that certain persons who are convicted and sentenced to probation for violating the Controlled Substances Act, 21 U.S.C. § 844, and were less than twenty-one years old at the time of the offense, may seek expungement. 18 U.S.C. § 3607(c). In such cases, Congress has not only specified the conditions for expungement, but defined the act of expungement. See id. § 3607(b) (providing

husband pied guilty again and received a mandatory ten-year sentence.


that the Department of Justice may, in any event, retain a nonpublic record of the disposition). Congress has also declared the legal effect of such expungement: "A person concerning whom such an order has been entered shall not be held thereafter under any provision of law to be guilty of perjury, false swearing, or making a false statement by reason of his failure to recite or acknowledge such arrests or institution of criminal proceedings, or the results thereof, in response to an inquiry made of him for any purpose." Id. § 3607(c). See also 21 U.S.C. § 844a(j) (describing similar conditions and restrictions). Similarly, in disciplinary matters involving employees of the Veterans Health Administration, the Secretary of Veterans Affairs may order various remedies to reinstate employees, "including expungement of records relating to the action." 38 U.S.C. § 7462(d)(l). Congress has further directed that DNA analysis be expunged from certain indices when a conviction has been overturned. 10 U.S.C. § 1565(e); 42 U.S.C. § 14132(d). See also 18 U.S.C. § 921(a)(20), (33)(B)(ii) (defining certain crimes to exclude convictions that have been expunged).2

[3, 4] Congress has not expressly granted to the federal courts a general power to expunge criminal records. Nevertheless, 8713 we have asserted that federal courts have inherent authority to expunge criminal records in appropriate and extraordinary cases. We have held that in criminal proceedings "district courts possess ancillary jurisdiction to expunge criminal records. That jurisdiction flows out of the congressional grant of jurisdiction to hear cases involving offenses against the United States pursuant to 18 U.S.C.

2. In several cases, we have addressed expungement in the context of the Federal Youth Correction Act's direction to "set aside the conviction." See United States v. Hovsepian, 307 F.3d 922, 928-30 (9th Cir.2002);

§ 3231." Sumner, 226 F.3d at 1014. We have also held, however, that district courts do not have the power "to expunge a record of a valid arrest and conviction solely for equitable considerations," because "the expungement of the record of a valid arrest and conviction usurps the powers that the framers of the Constitution allocated to Congress, the Executive, and the states." Id. Accordingly, "a district court's ancillary jurisdiction is limited to expunging the record of an unlawful arrest or conviction, or to correcting a clerical error." Id.

[5] Crowell did not seek expungement under any statutory provision or rule. Rather, she filed her motion under the original docket number before the same district court judge who accepted her Alford plea. Aware of the court's holding in Sumner, Crowell acknowledged that she had no basis for seeking equitable relief from the disability of her conviction. Instead, Crowell argued to the district court that she had legal grounds for expungement because her record of conviction was based on "an unlawful arrest or conviction,'' Sumner, 226 F.3d at 1014, because her Alford plea was not knowing, intelligent, or voluntary; the evidence against her resulted from an illegal search; and she received ineffective assistance of counsel in violation of the Sixth Amendment. Crowell's motion is, nevertheless, unusual. Unlike other motions for expungement we have approved, Crowell has not alleged that a record of her conviction exists in spite of an acquittal or a vacated conviction. See Maurer v. Individually and as Members of L.A. County Sheriffs Dept., 691 F.2d 434 (9th Cir.1982) (affirming the

Sumner, 226 F.3d at 1009-10. The Federal Youth Corrections Act, 18 U.S.C. § SOlO(a) (repealed in 1984), continues to apply to persons convicted while it was in effect. See Sumner, 226 F.3d at 1008 n. 2.


availability of expungement of arrest record following acquittal). Cf Burnswonh v. Gunderson, 179 F.3d 771 (9th Cir.1999) (affirming expungement of prison discipline records where there was "no evidence" to support the administrative charge). Rather, Crowell has used her motion for expungement as a post-conviction vehicle to challenge collaterally the lawfulness of her conviction. Crowell asks, effectively, that we vacate her conviction in order to expunge her records. This, we conclude, we cannot do.

The Constitution and statutes of the United States authorize various means by which defendants may collaterally attack a conviction. Defendants convicted of federal crimes may seek collateral relief through a presidential pardon. U.S. CONST. art. II, § 2, cl. 1. However, "[o]ne who is pardoned is merely released from the disabilities attendant upon conviction and has his civil rights restored." United States v. Doe, 556 F.2d 391, 392 (6th Cir. 1977). He is not entitled to erasure of the record of his conviction. United States v. Noonan, 906 F.2d 952 (3d Cir.1990). Preeminent among the statutory mechanisms is, of course, a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct a sentence, "a remedy identical in scope to federal habeas corpus." Davis v. United States, 417 U.S. 333, 343, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974). Section 2255 provides that prisoners

in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in viola-

3. Although Fed.R.Civ.P. 60(b) expressly abolishes common law writs, including coram nobis and audita querela, in civil proceedings, such writs survive as a means of collaterally attacking criminal convictions. United States v. Morgan, 346 U.S. 502, 510-11, 74 S.Ct. 247, 98 L.Ed. 248 (1954).

tion of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

In order to obtain relief under this section, a prisoner must allege one of the enumerated grounds and currently be in custody serving a sentence imposed by a federal court. Section 2255 does not provide for expungement, although we have suggested that, in an appropriate case, expungement might be granted following a prisoner's successful motion pursuant to § 2255. Sumner, 226 F .3d at 1012 & n. 6.

A defendant may also seek relief under the All Writs Act, 28 U.S.C. § 1651, which "fill[ed] the interstices of the federal postconviction remedial framework." 3 BravoDiaz, 312 F.3d at 997 n. 2 (9th Cir.2002) (quoting United States v. Ayala, 894 F.2d 425, 428 (D.C.Cir.1990)). See also Yasui v. United States, 772 F.2d 1496, 1498 (9th Cir.1985) (the writ of error coram nobis "fills a void in the availability of postconviction remedies in federal criminal cases.") In particular, we have recognized that petitions for coram nobis and audita querela may provide relief for persons who have grounds to challenge the validity of their conviction but, because they are not yet in custody or are no longer in custody, are not eligible for relief pursuant to § 2255.4 "[T]he coram nobis writ allows a

4. We have explained that the difference between coram nobis and audita querela is largely "one of timing, not substance." Doe v. INS, 120 F.3d 200, 203 n. 4 (9th Cir.1997). Whereas coram nobis could attach to a judgment that was infirm at the time it was rendered (for reasons that later came to light), audita querela attached to a judgment that


court to vacate its judgments 'for errors of fact . . . in those cases where the errors [are] of the most fundamental character, that is, such as rendered the proceeding itself invalid.' " Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir.1987) (quoting United States v. Mayer, 235 U.S. 55, 69, 35 S.Ct. 16, 59 L.Ed. 129 (1914)) (second alteration in Hirabayashi ). See also United States v. Monreal, 301 F.3d 1127, 1131-32 (9th Cir.2002), cert. denied, 537 U.S. 1178, 123 S.Ct. 1008, 154 L.Ed.2d 925 (2003); United States v. Taylor, 648 F.2d 565, 570 (9th Cir.), cert. denied, 454 U.S. 866, 102 S.Ct. 329, 70 L.Ed.2d 168 (1981). The writ of audita querela " 'provides relief from the consequences of a conviction when a defense or discharge arises subsequent to entry of the final judgment. The defense or discharge must be a legal defect in the conviction, or in the sentence which taints the conviction.' " 5

Doe v. INS, 120 F.3d at 203 (quoting United States v. Johnson, 962 F.2d 579, 582 (7th Cir.1992)).

In effect, Crowell seeks to add a motion for expungement of records to the list of post-conviction actions by which she may challenge her conviction. In providing for relief pursuant to § 2255, Congress has provided a near-comprehensive scheme for post-conviction collateral relief for those in custody. See Ex Parte McCardle, 73 U.S. (6 Wall.) 318, 325-26, 18 L.Ed. 816 (1868). As earlier noted, Congress has further authorized federal courts through the All Writs Act to fill in the post-conviction gaps. Proper regard for Congress and its careful and ongoing attention to post-conviction remedies demands that we not alter this scheme and enlarge our own power by the creation of new post-conviction reme-

was correct when rendered, but was later rendered infirm by events that occurred after the judgment. As with § 2255, the All Writs Act, coram nobis, and audita querela do not provide for expungement.

dies. See Matus-Leva v. United States, 287 F.3d 758, 761 (9th Cir.2002) (holding petitioner may not resort to coram nobis as a means of bypassing habeas relief under AEDP A, even if the petitioner fails to meet AEDP A's requirements), cert. denied, 537 U.S. 1022, 123 S.Ct. 544, 154 L.Ed.2d 431 (2002); Owens v. Boyd, 235 F.3d 356, 360 (7th Cir.2000) (precluding coram nobis as a means available to avoid statutory restrictions on federal habeas relief); United States v. Baptiste, 223 F.3d 188, 189-90 (3d Cir.2000) (per curiam) (holding that coram nobis was unavailable to prisoner who remained in custody but was barred from filing a successive petition for habeas corpus). See also Heck v. Humphrey, 512 U.S. 477, 480-81, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (plaintiffs may not challenge the basis for their conviction through action under 42 U.S.C. § 1983); Martin v. Sias, 88 F.3d 774, 775 (9th Cir.1996) (applying Heck to Bivens actions). Were we to hold that Crowell may challenge the lawfulness of her conviction through a motion for expungement, we would usurp Congress's power to control the terms on which petitioners may challenge their convictions.

[6] That Crowell invoked our ancillary jurisdiction by filing her motion under the original docket number does not affect our analysis. As we noted in Sumner, "[a] district court has 'inherent jurisdiction within the time allowed for appeal to modify its judgment for errors of fact or law or even to revoke a judgment.'" 226 F.3d at 1013 (quoting United States v. Villapudua-Perada, 896 F.2d 1154, 1156 (9th Cir.1990)). Once the time for appeal has elapsed, Fed. R.App. P. 4(b) is a "jurisdictional limitation

5. But see Doe v. INS, 120 F.3d at 204 & n. 5 (noting that several courts have questioned whether audita querela survives at all).


upon the powers of the district court after a judgment of conviction has been entered." Id.

Without a showing that she has a legal ground for expungement following the vacating or setting aside of her conviction, Crowell fails to make out a prima facie claim for expungement. Absent a viable legal ground for expungement, her claim falls into the category of the solely "equitable" claim for expungement. Accordingly, the district court lacked jurisdiction to consider Crowell's claims. Sumner, 226 F.3d at 1014-15. See also Bravo-Diaz, 312 F.3d at 998.

We do not hold that a defendant can never obtain expungement of criminal records. Rather, we conclude that Crowell cannot use a motion for expungement to make an "end-run" around recognized post-conviction remedies, such as habeas corpus, coram nobis, and audita querela, or others that Congress may create. See Matus-Leva, 287 F.3d at 761. Having been lawfully convicted, if Crowell wishes to expunge the records of her conviction, she must first obtain a judgment that her conviction was unlawful. Because she is no longer in custody, Crowell may file for coram nobis, audita querela, or a presidential pardon, as appropriate. We express no view as to whether she would be eligible for such relief.

[7] Once a petitioner has succeeded in getting her conviction vacated, a district court may then determine whether the

6. Even where a conviction has been set aside and expungement of judicial records deemed appropriate, expungement of executive records might not be. We maintain control over judicial records, but Congress has instructed the executive to maintain certain records. See 28 U.S.C. § 534(a)(l )(1994) ("The Attorney General shall acquire, collect, classify, and preserve identification, criminal identification, crime, and other records"); id. § 534(a)(4) (the Attorney General shall "ex-

petitioner has asserted circumstances extraordinary and unusual enough that would merit expungement of her criminal judicial records.6 We underscore what our cases have clearly held: even where a conviction has been held unlawful and vacated, expungement remains a "narrow, extraordinary exception," one "appropriately used only in extreme circumstances." United States v. Smith, 940 F.2d 395, 396 (9th Cir.1991) (per curiam). Thus, even if Crowell could demonstrate that a federal court had vacated, set aside, or otherwise invalidated her conviction, she might be eligible for, but would not be entitled to, the extraordinary remedy of expungement. See Rogers, 469 F.2d at 1085 (denying expungement despite district court's setting aside of unconstitutional conviction). See also United States v. Friesen, 853 F.2d 816, 817-18 (10th Cir.1988) (attorney acquitted on all counts of conspiracy not entitled to expungement of criminal records); Allen v. Webster, 742 F.2d 153, 155 (4th Cir.1984) (acquittee seeking expungement was not entitled to it absent "exceptional circumstances"); United States v. Schnitzer, 567 F.2d 536, 539-40 (2d Cir. 1977) (even following dismissal of indictment, expungement not warranted), cert. denied, 435 U.S. 907, 98 S.Ct. 1456, 55 L.Ed.2d 499 (1978); United States v. Linn, 513 F.2d 925, 927-28 (10th Cir.) (acquittal alone insufficient to warrant expungement of defendant's arrest record), cert. denied, 423 U.S. 836, 96 S.Ct. 63, 46 L.Ed.2d 55 (1975).

change such records and information with, and for the official use of, authorized officials of the Federal Government, the States, cities, and penal and other institutions"). See also Sumner, 226 F.3d at 1014 (discussing the executive's obligation). We may not control executive records through our ancillary jurisdiction any more than the executive, through its pardon power, may order the expungement of judicial records. Noonan, 906 F.2d at 955.

SCHWARZENEGGER v. FRED MARTIN MOTOR CO. 797 Cite as 374 F.3d 797 (9th Cir. 2004)

CONCLUSION

Crowell may not employ a motion for expungement as a substitute for an appropriate post-conviction challenge to her conviction. Insofar as she has not obtained a judgment that her conviction must be vacated or otherwise set aside, Crowell sought equitable relief, and the district court lacked ancillary jurisdiction to grant her motion. The judgment of the district court is AFFIRMED.

Arnold SCHWARZENEGGER, Plaintiff-Appellant,

v.

FRED MARTIN MOTOR COMP ANY, an Ohio corporation, Defendant

Appellee,

and

Fred Martin Superstore, a business entity, form unknown; Zimmerman & Partners Advertising, Inc., a corporation, Defendants.

No. 02-56937.


Argued and Submitted Sept. 10, 2003.


Background: Movie star brought action in California, alleging six state law causes of action arising out of Ohio car dealership's use of his photograph in advertisements. Following removal, the United States District Court for the Central District of California, Florence-Marie Cooper, J., dismissed. Movie star appealed.

Holdings: The Court of Appeals, William A. Fletcher, Circuit Judge, held that

(1) dealership's acts did not warrant exercise of general jurisdiction, and

(2) dealership did not have sufficient minimum contacts with California to warrant exercise of personal jurisdiction.

Affirmed.

1. Federal Courts e->776

Court of Appeals reviews de novo a district court's determination that it does not have personal jurisdiction over a defendant.


Where a defendant moves to dismiss a complaint for lack of personal jurisdiction, plaintiff bears burden of demonstrating that jurisdiction is appropriate.


Where a motion to dismiss for lack of jurisdiction is based on written materials rather than an evidentiary hearing, plaintiff need only make a prima facie showing of jurisdictional facts. Fed.Rules Civ. Proc.Rule 12(b)(2), 28 U.S.C.A.

4. Federal Courts e->33, 34

Although the plaintiff cannot simply rest on the bare allegations of its complaint, when confronted with a motion to dismiss for lack of jurisdiction, uncontroverted allegations in the complaint must be taken as true, and conflicts between parties over statements contained in affidavits must be resolved in the plaintiffs favor. Fed.Rules Civ.Proc.Rule 12(b)(2), 28 U.S.C.A.


Where there is no applicable federal statute governing personal jurisdiction, a district court applies the law of the state in

PROHIBITED ACTS UNDER 18 U.S.C. § 5861

It shall be unlawful for any person--(a) to engage in business as a manufacturer or importer of, or dealer in, firearms without having paid the special (occupational) tax required by section 5801 for his business or having registered as required by section 5802; or (b) to receive or possess a firearm transferred to him in violation of the provisions of this chapter; or (c) to receive or possess a firearm made in violation of the provisions of this chapter; or (d) to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record; or (e) to transfer a firearm in violation of the provisions of this chapter; or (f) to make a firearm in violation of the provisions of this chapter; or (g) to obliterate, remove, change, or alter the serial number or other identification of a firearm required by this chapter; or (h) to receive or possess a firearm having the serial number or other identification required by this chapter obliterated, removed, changed, or altered; or (i) to receive or possess a firearm which is not identified by a serial number as required by this chapter; or U) to transport, deliver, or receive any firearm in interstate commerce which has not been registered as required by this chapter; or (k) to receive or possess a firearm which has been imported or brought into the United States in violation of section 5844; or (I) to make, or cause the making of, a false entry on any application, return, or record required by this chapter, knowing such entry to be false.

PROHIBITED FIREARMS

•Firearms with obliterated serial numbers.

•Machine guns manufactured after May 19, 1986 unless FFL holder with proper documentation or individual with approved tax stamp.

•Short-barreled shotguns (defined as one with a barrel length of less than 18" or overall length less than 26").

PROHIBITED FIREARMS

•Short-barreled rifles (defined as one with a barrel length of less than 16" or overall length less than 26").

•Silencers or suppressors without proper tax stamp.

•Destructive devices without proper tax stamp.

Short barrel rifle or "SBR" •Rifle having a barrel or barrels of less than 16 inches in length •Overall length of less than 26 inches

SHOTGUN

26 u.s.c. § 5845(d)

The term "shotgun" means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed shotgun shell to fire through a smooth bore either a number of projectiles (ball shot) or a single projectile for each pull of the trigger, and shall include any such weapon which may be readily restored to fire a fixed shotgun shell.

Shotgun

MACHINEGUN

26 U.5.C. § 5845(b) Machinegun

The term "machinegun" means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person .

FIREARM SILENCER OR MUFFLER

18 U.5.C. § 921 (a)(24)

The terms "firearm silencer" and "firearm muffler" mean any device for silencing, muffling, or

diminishing the report of a portable firearm, including any combination of parts, designed or

redesigned, and intended for use in assembling or fabricating a firearm silencer or firearm muffler,

and any part intended only for use in such assembly or fabrication.

SILENCER OR SUPPRESSOR

FIREARM SENTENCING UNDER SENTENCING GUIDELINES

USSG § 2K2.1

(a) Base Offense Level (Apply the Greatest):

(1) 26, if (A) the offense involved a (i) semiautomatic firearm that is capable of accepting a large

capacity magazine; or (ii) firearm that is described in 26 U.S.C. 5845(a) ; and (B) the defendant

committed any part of the instant offense subsequent to sustaining at least two felony convictions of

either a crime of violence or a controlled substance offense;

(2) 24, if the defendant committed any part of the instant offense subsequent to sustaining at least

two felony convictions of either a crime of violence or a controlled substance offense;

(3) 22, if (A) the offense involved a (i) semiautomatic firearm that is capable of accepting a large

capacity magazine; or (ii) firearm that is described in 26 U.S.C. 5845(a); and (B) the defendant

committed any part of the instant offense subsequent to sustaining one felony conviction of either a

crime of violence or a controlled substance offense;

(4) 20, if--

(A) the defendant committed any part of the instant offense subsequent to sustaining one felony

conviction of either a crime of violence or a controlled substance offense; or

(B) the (i) offense involved a (I) semiautomatic firearm that is capable of accepting a large capacity

magazine; or (II) firearm that is described in 26 U.S.C. 5845(a); and (ii) defendant (I) was a

prohibited person at the time the defendant committed the instant offense; (II) is convicted under 18

U.S.C. 922(d); or (Ill) is convicted under 18 U.S.C. 922(a)(6) or 924(a)(1)(A) and committed the

offense with knowledge, intent, or reason to believe that the offense would result in the transfer of a

firearm or ammunition to a prohibited person;

(5) 18, if the offense involved a firearm described in 26 U.S.C. § 5845(a);

(6) 14, if the defendant (A) was a prohibited person at the time the defendant committed the instant

offense (B) is convicted under 18 U.S.C. 922(d); or (C) is convicted under 18 U.S.C. 922(a)(6) or

924(a)(1 )(A) and committed the offense with knowledge, intent, or reason to believe that the offense

would result in the transfer of a firearm or ammunition to a prohibited person;

(7) 12, except as provided below; or

(8) 6, if the defendant is convicted under 18 U.S.C. § 922(c), (e), (f), (m), (s), (t), or (x)(1 ), or 18

U.S.C. § 1715.

SEMIAUTOMATIC FIREARM CAPABLE OF ACCEPTING LARGE CAPACITY MAGAZINE

USSG 2K2.1 Application Note 2.

Semiautomatic Firearm That Is Capable of Accepting a Large Capacity Magazine.--For purposes of subsections (a)(1) , (a)(3), and (a)(4), a "semiautomatic firearm that is capable of accepting a large capacity magazine" means a semiautomatic firearm that has the ability to fire many rounds without reloading because at the time of the offense (A) the firearm had attached to it a magazine or similar device that could accept more than 15 rounds of ammunition; or (B) a magazine or similar device that could accept more than 15 rounds of ammunition was in close proximity to the firearm. This definition does not include a semiautomatic firearm with an attached tubular device capable of operating only with .22 caliber rim fire ammunition.

DEFINITION OF 'FELONY CONVICTION' under USSG §2K2.1

"Felony conviction" means a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed. A conviction for an offense committed at age eighteen years or older is an adult conviction. A conviction for an offense committed prior to age eighteen years is an adult conviction if it is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted (e.g., a federal conviction for an offense committed prior to the defendant's eighteenth birthday is an adult conviction if the defendant was expressly proceeded against as an adult).

For purposes of calculating whether the enhanced base offense levels under USSG § 4K2.1 (a)(1 ), (2), (3), or (4)(A) apply, only felony convictions that receive criminal history points under§ 4A 1.1 can be used.

QUANTITY

USSG § 2K2.1 (b) Specific Offense Characteristics

(1) If the offense involved three or more firearms, increase as follows:

Number of Firearms Increase in Level

(A) 3-7

add 2

(B) 8-24 add4

(C) 25-99 add 6

(D) 100-199 add 8

(E) 200 or more add 10.

POSSESSED SOLELY FOR LAWFUL SPORTING PURPOSES OR COLLECTION

USSG §2K2.1(b)(2)

If the defendant, other than a defendant subject to subsection (a)(1 ), (a)(2), (a)(3), (a)(4), or (a)(S), possessed all ammunition and firearms solely for lawful sporting purposes or collection, and did not unlawfully discharge or otherwise unlawfully use such firearms or ammunition, decrease the offense level determined above to level 6.

Application Note 6 Application of Subsection (b)(2).--Under subsection (b)(2), "lawful sporting purposes or collection" as determined by the surrounding circumstances, provides for a reduction to an offense level of 6. Relevant surrounding circumstances include the number and type of firearms, the amount and type of ammunition, the location and circumstances of possession and actual use, the nature of the defendant's criminal history (e.g., prior convictions for offenses involving firearms), and the extent to which possession was restricted by local law. Note that where the base offense level is determined under subsections (a)(1 )-(a)(S), subsection (b)(2) is not applicable.

Note - this sentencing provision applies to "prohibited person" under USSG 2K2.1 (a)(6) .

DESTRUCTIVE DEVICES ENHANCEMENT

USSG §2K2.1 (b)

(3) If the offense involved--(A) a destructive device that is a portable rocket, a missile, or a device for use in launching a portable rocket or a missile, increase by 15 levels; or (8) a destructive device other than a destructive device referred to in subdivision (A), increase by 2 levels.

Application Note 1. "Destructive device" has the meaning given that term in 26 U.S.C. § 5845(f) .

26 U.S.C. § 5845(f) Destructive device.--The term "destructive device" means (1) any explosive, incendiary, or poison gas (A) bomb, (B) grenade, (C) rocket having a propellent charge of more than four ounces, (D) missile having an explosive or incendiary charge of more than one-quarter ounce, (E) mine, or (F) similar device; (2) any type of weapon by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell which the Secretary finds is generally recognized as particularly suitable for sporting purposes; and (3) any combination of parts either designed or intended for use in converting any device into a destructive device as defined in subparagraphs (1) and (2) and from which a destructive device may be readily assembled. The term "destructive device" shall not include any device which is neither designed nor redesigned for use as a weapon; any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar device; surplus ordnance sold, loaned, or given by the Secretary of the Army pursuant to the provisions of section 4684(2), 4685, or 4686 of Title 10 of the United States Code; or any other device which the Secretary finds is not likely to be used as a weapon, or is an antique or is a rifle which the owner intends to use solely for sporting purposes.

Application Note 7. Destructive Devices.--A defendant whose offense involves a destructive device receives both the base offense level from the subsection applicable to a firearm listed in 26 U.S.C. § 5845(a) (e.g., subsection (a)(1 ), (a)(3), (a)(4)(B), or (a)(5)), and the applicable enhancement under subsection (b)(3). Such devices pose a considerably greater risk to the public welfare than other National Firearms Act weapons.

OBLITERATED SERIAL NUMBER OR STOLEN FIREARM ENHANCEMENT

USSG § 2K2.1 (b) (4) If any firearm (A) was stolen, increase by 2 levels; or (B) had an altered or

obliterated serial number, increase by 4 levels.

A serial number is altered or obliterated , where the number is not discernable to the unaided eye,

but remains detectable via microscopy. United States v. Carter, 421 F.3d 909 (9th Cir. 2005).

USED OR POSSESSED IN CONNECTION WITH ANOTHER FELONY OFFENSE

ENHANCEMENT

USSG §2K2.1 (b)(6) If the defendant-

(B) Used or possessed any firearm or ammunition in connection with another felony offense; or

possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that

it would be used or possessed in connection with another felony offense,

increase by 4 levels. If the resulting offense level is less than level 18, increase to level 18.

Pay close attention to Application Note 14(B)(ii) which states that subsection (b)(6)(B) applies "in the

case of a drug trafficking offense in which a firearm is found in close proximity to drugs, drug

manufacturing materials, or drug paraphernalia."

DEFINITION 'CRIME OF VIOLENCE' AND 'CONTROLLED SUBSTANCE OFFENSE' UNDER SENTENCING GUIDELINES

USSG § 481.2

(a) The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that--(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. 5845(a) or explosive material as defined in 18 U.S.C. 841 (c).

(b) The term "controlled substance offense" means an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.

U.S.S.G. § 481.2 (a) The term 11crime of violence 11 means any offense under federal or state law punishable by imprisonment for a term exceeding one year that --

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. § 481.2 (a) The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that-

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, burglary of a dv1eHing, arson, ef extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c) involves use of explosives, er otherwise involves conduct that presents a serious potential risk of physical injury to another.

In Beckles v. United States, No. 15-8544, 2017 WL 855781 (Mar. 6, 2017), the Supreme Court held that "the advisory Guidelines are not subject to vagueness challenges under the Due Process Clause" and, as a result,§ 481 .2's residual clause is not void for vagueness.

For defendants whose offenses occurred on or after August 1, 2016, the new version of U.S.S.G. §

481.1, applies. That guideline removed the residual clause and replaced it with a new list of

enumerated offenses.

For defendants whose offenses occurred before August 1, 2016, but who have not yet been sentenced,

Beckles eliminates the availability of some arguments. Previously, some of those defendants had an

argument that (i) the pre-Amendment version of§ 4Bl.2(a) should apply but (ii) the residual clause and

commentary offenses are unconstitutional, such that only offenses that have an element of violent

force or that are enumerated in the guidelines' text should be predicates.

BANK ROBBERY - SENTENCING ENHANCEMENT FOR WEAPONS

USSG 2B3.1(b)(2) (A) If a firearm was discharged, increase by 7 levels; (B) if a firearm was otherwise used, increase by 6 levels; (C) if a firearm was brandished or possessed, increase by 5 levels; (D) if a dangerous weapon was otherwise used, increase by 4 levels; (E) if a dangerous weapon was brandished, or possessed, increase by 3 levels; or (F) if a threat of death was made, increase by 2 levels.

USSG 2B3.1 (b)(6) If a firearm, destructive device, or controlled substance was taken, or if the taking of such item was an object of the offense, increase by 1 level.

Application Notes:

1. "Firearm," "destructive device," "dangerous weapon," "otherwise used," "brandished," . .. are defined in the Commentary to § 1B1.1

2. Consistent with Application Note 1 (D)(ii) of§ 181 .1 (Application Instructions), an object shall be considered to be a dangerous weapon for purposes of subsection (b)(2)(E) if (A) the object closely resembles an instrument capable of inflicting death or serious bodily injury; or (B) the defendant used the object in a manner that created the impression that the object was an instrument capable of inflicting death or serious bodily injury (e.g ., a defendant wrapped a hand in a towel during a bank robbery to create the appearance of a gun).

USSG § 181 .1 Weapons Definitions (Application Note 1)

(C) "Brandished" with reference to a dangerous weapon (including a firearm) means that all or part of the weapon was displayed, or the presence of the weapon was otherwise made known to another person, in order to intimidate that person, regardless of whether the weapon was directly visible to that person. Accordingly, although the dangerous weapon does not have to be directly visible, the weapon must be present.

(D) "Dangerous weapon" means (i) an instrument capable of inflicting death or serious bodily injury; or (ii) an object that is not an instrument capable of inflicting death or serious bodily injury but (I) closely resembles such an instrument; or (II) the defendant used the object in a manner that created the impression that the object was such an instrument (e.g. a defendant wrapped a hand in a towel during a bank robbery to create the appearance of a gun).

(F) "Destructive device" means any article described in 26 U.S.C. 5845(f) (including an explosive, incendiary, or poison gas--(i) bomb, (ii) grenade, (iii) rocket having a propellant charge of more than four ounces, (iv) missile having an explosive or incendiary charge of more than one-quarter ounce, (v) mine, or (vi) device similar to any of the devices described in the preceding clauses).

(G) "Firearm" means (i) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (ii) the frame or receiver of any such weapon; (iii) any firearm muffler or silencer; or (iv) any destructive device. A weapon, commonly known as a "BB" or pellet gun, that uses air or carbon dioxide pressure to expel a projectile is a dangerous weapon but not a firearm.

(I) "Otherwise used" with reference to a dangerous weapon (including a firearm) means that the conduct did not amount to the discharge of a firearm but was more than brandishing, displaying, or possessing a firearm or other dangerous weapon.

EXAMPLES OF OTHER WEAPON ENHANCEMENTS UNDER THE SENTENCING GUIDELINES

Theft, Embezzlement, Stolen Property

USSG §281 .1 (15) If the offense involved (A) the conscious or reckless risk of death or serious bodily injury; or (8) possession of a dangerous weapon (including a firearm) in connection with the offense, increase by 2 levels. If the resulting offense level is less than level 14, increase to level 14.

Extortion by Force

USSG §283.2(b)(3)(A) (i) If a firearm was discharged, increase by 7 levels; (ii) if a firearm was otherwise used, increase by 6 levels; (iii) if a firearm was brandished or possessed, increase by 5 levels; (iv) if a dangerous weapon was otherwise used, increase by 4 levels; or (v) if a dangerous weapon was brandished or possessed, increase by 3 levels.

Counterfeiting

USSG §285.1 (4) If a dangerous weapon (including a firearm) was possessed in connection with the offense, increase by 2 levels. If the resulting offense level is less than level 13, increase to level 13.

Extortionate Extension of Credit

USSG §2E2.1 (b)(1 )(A) If a firearm was discharged increase by 5 levels; or (8) if a dangerous weapon (including a firearm) was otherwise used, increase by 4 levels; or (C) if a dangerous weapon (including a firearm) was brandished or possessed, increase by 3 levels.

Peonage

USSG §2H4.1 (b)(2)(1 )(A) If any victim sustained permanent or life-threatening bodily injury, increase by 4 levels; or (8) if any victim sustained serious bodily injury, increase by 2 levels. (2) If (A) a dangerous weapon was used, increase by 4 levels; or (8) a dangerous weapon was brandished, or the use of a dangerous weapon was threatened, increase by 2 levels. (3) If any victim was held in a condition of peonage or involuntary servitude for (A) more than one year, increase by 3 levels; (8) between 180 days and one year, increase by 2 levels; or (C) more than 30 days but less than 180 days, increase by 1 level.

Smuggling or Transportation of Alien

USSG §2L 1.1 (b)(5) (A) If a firearm was discharged, increase by 6 levels, but if the resulting offense level is less than level 22, increase to level 22. (8) If a dangerous weapon (including a firearm) was brandished or otherwise used, increase by 4 levels, but if the resulting offense level is less than level 20, increase to level 20. (C) If a dangerous weapon (including a firearm) was possessed, increase by 2 levels, but if the resulting offense level is less than level 18, increase to level 18.

GUIDELINE SENTENCING ENHANCEMENT FOR WEAPONS IN DRUG OFFENCES

USSG §2D1.1(b)

(1) If a dangerous weapon (including a firearm) was possessed, increase by 2 levels.

(2) If the defendant used violence, made a credible threat to use violence, or directed the use of

violence, increase by 2 levels.

IMPACT OF FIREARM OR DANGEROUS WEAPON ON "SAFETY VALVE" ELIGIBILITY

USSG § 5C1 .2 allows the court to "impose a sentence in accordance with the applicable guidelines without regard to any statutory minimum sentence" but only if the court finds, among other things:

(a)(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense

FIREARMS and RESIDENTIAL DRUG AND ALCOHOL PROGRAM (RDAP)

Per BOP discretion, prisoners may not be eligible for early release pursuant to 18 U.S.C. § 3621(e) if they

are currently convicted of a felony offense involving carrying, possession or use of a firearm, dangerous

weapon or explosives, or where a specific offense characteristic was applied for possession of a weapon

under the Sentencing Guidelines.

Peck v. Thomas, 697 F.3d 767 (9th Cir. 2012) .

PECK v. THOMAS 767 Cite as 697 F.3d 767 (9th Cir. 2012)

quez-Lobos's prior conviction under ARS § 13-1304 categorically qualifies as a "crime of violence," and his 16-level sentence enhancement was properly imposed.

CONCLUSION

We hold that Arizona Revised Statute § 13-1304, categorically meets the generic definition of kidnapping, and we AFFIRM Marquez-Lobo's sentence.

Lonnie PECK, Petitioner-Appellant,

v.

J.E. THOMAS, Respondent-Appellee.

Louis D. Moon, Petitioner-Appellant,

v.

J.E. Thomas, Warden, RespondentAppellee.

Deven Suesue, aka Devon Suesue, Petitioner-Appellant,

v.

J.E. Thomas, Warden, RespondentAppellee.

Nos. 11-35283, 11-35296, 11-35355.


Argued and Submitted March 7, 2012.


Amended Oct. 5, 2012.

Background: Federal prisoners filed habeas petitions to challenge validity of Bureau of Prisons (BOP) regulations that categorically disqualified prisoners with current felony conviction for offenses in-

volving carrying, possession, or use of a firearm or other dangerous weapon or explosives from the early release incentive associated with Residential Drug Abuse Treatment Program (RDAP). The United States District Court for the District of Oregon, Michael W. Mosman, J ., 787 F.Supp.2d 1145, 787 F.Supp.2d 1154, and 2011 WL 1527365, denied petitions. Prisoners appealed.

Holdings: The Court of Appeals, Bybee, Circuit Judge, held that:

(1) BOP regulation excluding inmates with firearm-related convictions from early release under RDAP was not arbitrary, capricious, or an abuse of discretion;

(2) BOP regulation excluding inmates with prior convictions for homicide, forcible rape, robbery, aggravated assault, arson, kidnapping, or child sexual abuse from early release under RDAP was not arbitrary, capricious, or an abuse of discretion;

(3) BOP was entitled to invoke its experience as justification for rule; and

(4) perceived inconsistencies with congressional intent was not sufficient to invalidate regulation.

Affirmed.

Opinion, 682 F.3d 1201, amended.

1. Habeas Corpus e:->842

A district court's dismissal of a petition for writ of habeas corpus is reviewed de novo.

2. Administrative Law and Procedure e:->760, 763

The scope of review under the "arbitrary and capricious" standard of the Administrative Procedure Act (AP A) is narrow and a court is not to substitute its


judgment for that of the agency. U.S.C.A. § 706(2)(A).

5 18 U.S.C.A. § 550.55(b)(4).

§ 3621(b); 28 C.F.R.

3. Administrative Law and Procedure e=>749, 763

Agency action is presumed to be valid under the Administrative Procedure Act (AP A) and must be upheld if a reasonable basis exists for the agency decision; a reasonable basis exists where the agency considered the relevant factors and articulated a rational connection between the facts found and the choices made.

4. Prisons e=>245(4) Bureau of Prisons (BOP) regulation

excluding inmates with firearm-related convictions from early release under Residential Drug Abuse Treatment Program (RDAP) was not arbitrary, capricious, or an abuse of discretion, and thus the regulation was valid under the Administrative Procedure Act (AP A); BOP found that commission of firearm offenses illustrated a readiness to endanger the public, and in the correctional experience of the BOP, the offense conduct of both armed offenders and certain recidivists suggested they posed a particular risk to the public. 5 U.S.C.A. § 706(2)(A); 18 U.S.C.A. § 3621(b); 28 C.F.R. § 550.55(b)(5)(ii).

5. Prisons e=>245( 4) Bureau of Prisons (BOP) regulation

excluding inmates with prior convictions for homicide, forcible rape, robbery, aggravated assault, arson, kidnapping, or child sexual abuse from early release under Residential Drug Abuse Treatment Program (RDAP) was not arbitrary, capricious, or an abuse of discretion, and thus the regulation was valid under the Administrative Procedure Act (AP A); it was consistent with intent of Congress to restrict early release eligibility to non-violent offenders and for BOP to deny eligibility based on prior convictions designated as violent offenses. 5 U.S.C.A. § 706(2)(A);

6. Constitutional Law e=>4726

An inmate does not have a due process liberty interest in a sentence reduction in exchange for completion of Residential Drug Abuse Treatment Program (RDAP). U.S.C.A. Const.Amend. 14.

7. Administrative Law and Procedure e:;.391

When promulgating a regulation, an agency does not have the burden to state all of the reasons for which it did not reach a decision.

8. Prisons e=>327

Bureau of Prisons (BOP) was not required to develop and rely on detailed statistics before promulgating rule that categorically excluded prisoners with certain prior convictions from early release eligibility; BOP was entitled to invoke its experience as justification for rule. 18 U.S.C.A. § 3621(b); 28 C.F.R. § 550.55(b)(4).

9. Prisons e=>245( 4)

Perceived inconsistencies with congressional intent to provide incentive to encourage maximum participation in Bureau of Prisons (BOP) substance abuse treatment programs was not sufficient to invalidate regulation categorically excluding prisoners with certain prior convictions from early release eligibility, since regulation did not violate congressional command; although BOP did not maximize inmate participation, it was struggling with its limited resources to accommodate all inmates who currently wished to participate and it was entitled to take categorical approach to solving that problem. 18 U.S.C.A. § 3621(b); 28 C.F.R. § 550.55(b).


Stephen R. Sady, Chief Deputy Federal Public Defender, Portland, OR, for the appellant.

Ronald K. Silver, Assistant United States Attorney, Portland, OR, for the appellant.

Appeal from the United States District Court for the District of Oregon, Michael W. Mosman, District Judge, Presiding. D.C. Nos. 3:10-cv-00709-MO, 3:10-cv-01154-MO, 3:10-cv-01295-MO.

Before: WILLIAM A. FLETCHER, RAYMOND C. FISHER, and JAYS. BYBEE, Circuit Judges.

ORDER

The opinion filed on June 19, 2012, slip op. 7097 and available at 682 F.3d 1201 (2012), is amended as follows:

1. At slip op. 7109 [682 F.3d at 1208], the following sentence should be changed from "But the BOP's unsuccessful attempts to enact the regulation at issue do not demonstrate willful noncompliance with statutory mandates, and no court has ever found this to be case." to "But the BOP's unsuccessful attempts to enact the regulation at issue do not demonstrate willful noncompliance with statutory mandates, and no court has ever found this to be the case."

2. At slip op. 7109 [682 F.3d at 1208], the following sentence should be added at the end of the sentence above: "We uphold the regulation under the usual AP A standard. See 5 U.S.C. § 706(2)(A); State Farm, 463 U.S. at 42-43 [103 S.Ct. 2856]."

1. Although two of the three petitioners are currently serving terms of supervised release, "relief may still be available in the form of modification, amendment, or termination of their supervised release." Arrington v. Daniels . 516 F.3d 1106, 1111 n. 4 (9th Cir.2008)

With this amendment, the panel judges have voted to deny appellant's petition for panel rehearing and petition for rehearing en bane.

The full court has been advised of the petition for rehearing en bane and no judge has requested a vote on whether to rehear the matter en bane. Fed. R.App. P. 35.

Appellant's petition for panel rehearing and petition for rehearing en bane, filed August 3, 2012, is DENIED.

No further petitions for panel rehearing or rehearing en bane will be considered.

OPINION

BYBEE, Circuit Judge:

Petitioners Lonnie Peck, Louis Moon, and Deven Suesue are statutorily eligible for early release from prison in exchange for the successful completion of a residential drug abuse treatment program ("RDAP"). The Bureau of Prisons ("BOP"), however, has enacted a regulation disqualifying them from the early release incentive on the basis of their current convictions for felon in possession and one petitioner's past conviction for robbery. See 28 C.F.R. § 550.55(b). Petitioners each filed for a writ of habeas corpus asking the district court to invalidate the regulation under § 706 of the Administrative Procedure Act ("AP A"). The district court dismissed the petitions, and the appeals were consolidated. We have jurisdiction under 28 U.S.C. § 1291 and § 2253 1 and we affirm.

(citing 18 U.S.C. § 3583(e)(2)); see also Paulsen v. Daniels, 413 F.3d 999, 1005 n. 3 (9th Cir.2005). Here, because the petitioners completed RDAP while in prison, a decision invalidating the regulation rendering them ineligible for early release in exchange for com-


I. FACTS AND PROCEDURAL BACKGROUND

Petitioners were each convicted of being a felon in possession of a firearm under 18 U.S.C. § 922(g), and are either currently serving sentences in BOP facilities or serving terms of supervised release. At the time of his conviction, Petitioner Moon had a past conviction for robbery, but he received no criminal history points under the Sentencing Guidelines because the conviction was more than 15 years old.

In 1990, Congress directed the BOP to create programs to treat substance abuse among inmates. See 18 U.S.C. § 3621(b). To encourage participation in this program, Congress subsequently determined that inmates who successfully complete the program would be eligible for up to one year of early release from prison-as long as the inmate had been convicted of a "nonviolent offense." Id. § 3621(e)(2)(B).

Under the authority delegated by this statute, the BOP has implemented a regulation that categorically excludes certain classes of inmates from eligibility for § 3621(e)'s early release incentive. See 28 C.F.R. § 550.55(b). Petitioners challenge two aspects of this regulation: first, the exclusion of inmates convicted of "[a]n offense that involved the . . . possession .. . of a firearm," id. § 550.55(b)(5)(ii); and second, the exclusion of inmates who have a prior conviction for homicide, forcible rape, robbery, aggravated assault, arson, kidnapping, or child sexual abuse, regardless of the age of that conviction, id. § 550.55(b)(4).

pleting RDAP could provide a basis to shorten their terms of supervised release.

2. The Eighth, Tenth, and Eleventh Circuits agreed that the regulation adopted an unreasonable definition of "crime of violence," see Martin v. Gerlinski, 133 F.3d 1076, 1079 (8th Cir.1998); Fristoe v. Thompson , 144 F .3d 627,

The history of the BOP's attempts to implement these categorical exclusions is lengthy but relevant. Initially, the regulation defined the term "nonviolent offense" in § 362l(e) with reference to the statutory definition of "crime of violence" found in 18 U.S.C. § 924(c)(3). See 28 C.F.R. § 550.58 (1995). We invalidated that regulation, holding that the inclusion of a § 922(g) possession charge is not a reasonable interpretation of the term "crime of violence" in § 924(c)(3). Davis v. Crabtree, 109 F.3d 566, 569 (9th Cir.1997). This eventually created a circuit split.2

To resolve this circuit split, the BOP dropped the reference to § 924(c)(3) and instead asserted its discretionary authority to determine eligibility for early release under § 362l(e). In 1997, the BOP published an interim rule, effective immediately, that categorically excluded from eligibility for early release inmates with current convictions for felony offenses "involv[ing] the carrying, possession, or use of a firearm." 28 C.F.R. § 550.58(a)(l)(vi) (1998). In addition, the regulation continued to exclude prisoners with prior convictions for certain offenses. Id. § 550.58(a)(l)(iv).

We upheld the Bureau's authority to so disqualify otherwise statutorily eligible inmates. See Bowen v. Hood, 202 F.3d 1211, 1220 (9th Cir.2000) (holding that the 1997 rule's exclusion based on firearms possession was a reasonable exercise of discretion granted by the statute); Jacks v. Crabtree, 114 F.3d 983, 986 (9th Cir. 1997) (holding that the 1995 rule's exclusion of inmates with prior convictions for

631 (10th Cir.1998); Byrd v. Hasty, 142 F.3d 1395, 1398 (11th Cir.1998), but the Fourth and Fifth Circuits held otherwise, see Pelissero v. Thompson, 170 F.3d 442, 447 (4th Cir. 1999); Venegas v. Henman, 126 F.3d 760, 763 (Sth Cir.1997).


certain offenses was entitled to deference and was reasonable). The Supreme Court later agreed, holding that "the agency's interpretation is reasonable both in taking account of preconviction conduct and in making categorical exclusions." Lopez v. Davis, 531 U.S. 230, 242, 121 S.Ct. 714, 148 L.Ed.2d 635 (2001). The Court explained that "the Bureau need not blind itself to preconviction conduct that the agency reasonably views as jeopardizing life and limb. By denying eligibility to violent offenders, the statute manifests congressional concern for preconviction behavior-and for the very conduct leading to conviction." Id. The Court also found that "[t]he Bureau reasonably concluded that an inmate's prior involvement with firearms, in connection with the commission of a felony, suggests his readiness to resort to life-endangering violence and therefore appropriately determines the early release decision." Id. at 244, 121 S.Ct. 714.

The Lopez Court declined to reach the question of whether the BOP had complied with the notice-and-comment provisions of the APA in promulgating the 1997 rule. Id. at 244 n. 6, 121 S.Ct. 714. We took up this question in Paulsen v. Daniels, holding that the BOP had violated the AP A by "implement[ing] a rule first, and then seek[ing] comment later." 413 F.3d 999, 1005 (9th Cir.2005). We invalidated the 1997 interim rule, declined to reinstate the 1995 version because it was also invalid, and noted that the law currently in effect was a final rule that had been promulgated in 2000. Id. at 1008.

The 2000 rule finalized the 1997 interim rule without change. Id. at 1003; see 28 C.F.R. § 550.58 (2001). Once again, we invalidated the BOP's efforts. In Arrington v. Daniels, we held that the 2000 rule, insofar as it categorically excluded inmates convicted of firearm-possession offenses,

was arbitrary and capnc10us under § 706(2)(A) of the AP A because the agency failed to give a reasoned basis for its action. 516 F.3d 1106, 1113-14 (9th Cir. 2008). In Arrington, we found that the administrative record did not contain the rationale advanced by the agency during litigation, id. at 1113, and concluded that the BOP had "failed to set forth a rationale for its decision to categorically exclude prisoners convicted of offenses involving the carrying, possession, or use of firearms from eligibility for a sentence reduction under § 3621(e)," id. at 1114.

Following Arrington, we invalidated the exclusion based on prior convictions in Crickon v. Thomas, 579 F.3d 978 (9th Cir. 2009). Crickon noted that "[o]ur recent ruling in Arrington squarely controls the outcome of the present case," id. at 983, and once again criticized the BOP for enacting a regulation without articulating a supporting rationale, id. at 984-85.

Not to be deterred, the BOP responded to Arrington and Crickon by enacting identical provisions in a 2009 rule. See 28 C.F.R. § 550.55. It is this rule that Petitioners here challenge-specifically, the exclusions set forth in 28 C.F.R. § 550.55(b)(5)(ii) and § 550.55(b)(4). At the outset, we note that every other circuit court to consider the issue has held either the current or prior version of this regulation to be valid under the AP A. See Licon v. Ledezma, 638 F.3d 1303, 1311 (10th Cir.2011); Giannini v. Fed. Bureau of Prisons, 405 Fed.Appx. 96, 97 (8th Cir. 2010); Stevenson v. FCI Waseca, 383 Fed. Appx. 587, 588 (8th Cir.2010); Handley v. Chapman, 587 F.3d 273, 282 (5th Cir. 2009); Gardner v. Grandolsky, 585 F.3d 786, 791-92 (3d Cir.2009); Gatewood v. Outlaw, 560 F.3d 843, 84~9 (8th Cir. 2009).

[1] The district court issued three separate opinions, each finding that the BOP's


regulation is valid under AP A § 706. Petitioners timely appealed. Petitioners argue that: (1) the articulated rationale is once again insufficient to justify the rule; (2) a heightened APA standard should apply to rules that involve the loss of liberty; (3) the legal error in the accompanying Program Statement infects the regulation and renders it invalid; (4) the BOP was required to reach a decision on the basis of available statistics rather than merely invoking its experience; and (5) the BOP's interpretation conflicts with Congress' expressed intent. In response, the BOP argues that it has cured the defects identified in Arrington and Crickon, and that the public safety rationale justifies the regulation.3

IL DISCUSSION

A. The BOP Satisfied § 706 of the APA by Articulating a Public Safety Rationale.

[2, 3) Section 706 of the AP A grants authority to a reviewing court to "hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). "The scope of review under the 'arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). Agency action is presumed to be valid and must be upheld if a reasonable basis exists for the agency decision. Sacora v. Thomas, 628 F.3d 1059, 1068 (9th Cir.2010) (citing Crickon, 579 F.3d at 982). "A reasonable basis exists where the agency considered the relevant factors and articulated a ra-

3. We review a district court's dismissal of a petition for writ of habeas corpus de nova.

tional connection between the facts found and the choices made." Arrington, 516 F.3d at 1112 (internal quotation marks omitted).

[ 4) The district court correctly found that, in enacting the categorical exclusions at issue in this case, the agency offered a public safety rationale in the administrative record. The BOP argues that this cures the procedural defects identified by the Arrington and Crickon courts. Petitioners argue that, while it is true that we previously invalidated the regulation for the failure to offer any contemporaneous rationale, it is not true that the present regulation's rationale cured that procedural defect. We uphold the regulation.

1. The Bureau Did Not Violate the AP A in Enacting 28 C.F.R. § 550.55(b)(5)(ii).

When enacting the 2009 regulation, the Bureau stated:

The Director of the Bureau exercises discretion to deny early release eligibility to inmates who have a felony conviction for the offenses listed in § 550.55(b)(5)(i)-(iv) because commission of such offenses illustrates a readiness to endanger the public. Denial of early release to all inmates convicted of these offenses rationally reflects the view that, in committing such offenses, these inmates displayed a readiness to endanger another's life.

The Director of the Bureau, in his discretion, chooses to preclude from early release consideration inmates convicted of offenses involving carrying, possession or use of a firearm and offenses that present a serious risk of physical force against person or proper-

Bowen, 202 F.3d at 1218.


ty, as described in § 550.55(b)(5)(ii) and (iii). Further, in the correctional experience of the Bureau, the offense conduct of both armed offenders and certain recidivists suggests that they pose a particular risk to the public. There is a significant potential for violence from criminals who carry, possess or use firearms.

Drug Abuse Treatment Program: Subpart Revision and Clarification and Eligibility of D.C. Code Felony Offenders for Early Release Consideration, 74 Fed. Reg. 1892, 1895 (Bureau of Prisons Jan. 14, 2009).

The defect identified in Arrington-a failure to articulate any supporting rationale in the administrative record, 516 F.3d at 1113-has been cured here. The Bureau clearly stated that, "in the correctional experience of the Bureau, the offense conduct of both armed offenders and certain recidivists suggests that they pose a particular risk to the public." 74 Fed. Reg. at 1895. The Bureau further explained that it was exercising its discretion because "[t]here is a significant potential for violence from criminals who carry, possess or use firearms" and that "in committing such offenses, these inmates displayed a readiness to endanger another's life." Id. Although the Bureau could have proffered a fuller explanation, the AP A does not demand more.

2. The Bureau did not violate the AP A in enacting 28 C.F.R. § 550.55(b)(4).

[5] With regard to the exclusion based on prior convictions in § 550.55(b)(4), the BOP explained:

In exercising the Director's statutory discretion, we considered the crimes of homicide, forcible rape, robbery, aggravated assault, arson, and kidnaping, as identified in the FBI's Uniform Crime Reporting Program (UCR), which is a collective effort of city, county, state,

tribal, and federal law enforcement agencies to present a nationwide view on crime. The definitions of these terms were developed for the National Incident-Based Reporting System and are identified in the UCR due to their inherently violent nature and particular dangerousness to the public.

The Director of the Bureau exercises discretion to deny early release eligibility to inmates who have a prior felony or misdemeanor conviction for these offenses because commission of such offenses rationally reflects the view that such inmates displayed readiness to endanger the public.

74 Fed. Reg. at 1894.

We had previously criticized this portion of the BOP's regulation because, "[b]eyond explaining that it decided upon the four identified categories of convictions because of the variation in violence level that may be found in state convictions, the BOP provided no explanation for its decision to look to prior convictions as the appropriate basis to determine categorical exclusions." Crickon, 579 F.3d at 984 (citation omitted). This time, the BOP has explained, minimally, that "commission of such offenses [homicide, forcible rape, robbery, aggravated assault, arson, and kidnaping] rationally reflects the view that such inmates displayed readiness to endanger the public." 74 Fed. Reg. at 1894. As we and the Supreme Court have found, this reasoning is permissible and based on common sense. Lopez, 531 U.S. at 242, 121 S.Ct. 714; Jacks, 114 F.3d at 985--86. Now that the agency has explicitly relied on such reasoning in the administrative record, we see no reason to overturn the regulation. Nor does the lack of a temporal restriction on prior convictions invalidate the regulation: implicit in the Bureau's reasoning is the determination that a prior conviction for any of these offenses, no matter its age, "rationally reflects the view that such in-


mates displayed readiness to endanger the public." 74 Fed. Reg. at 1894.

Petitioners argue that this rationale is insufficient because it relies on erroneous facts. The BOP stated that it chose the particular crimes "as identified in the FBI's Uniform Crime Reporting Program (UCR)." Id. The Bureau then explained that "[t]he definitions of these terms were developed for the National Incident-Based Reporting System and are identified in the UCR due to their inherently violent nature and particular dangerousness to the public." Id. Petitioners point out, however, that the crimes were actually identified in the UCR because they are "serious crimes, they occur with regularity in all areas of the country, and they are likely to be reported to the police." Fed. Bureau of Investigation, Uniform Crime Report, Crime in the United States, 2009, at 1 (Sept. 2010), http://www2.fbi.gov/ucr/cius 2009/documents/09offensedefinitions.pdf.

The Petitioners' argument misses the mark. First, it is not clear that "seriousness" is a significantly different measure from "violent nature" and "dangerousness." The agency is entitled to rely on an existing index of serious crimes to identify crimes that are dangerous. Second, the BOP never states that it chose these crimes because they were listed in the UCR as dangerous and violent. Instead, it states that: (1) these crimes are listed in the UCR as dangerous and violent, and (2) the commission of these crimes "rationally reflects the view that such inmates displayed readiness to endanger the public." 74 Fed. Reg. at 1894. Because the agency is entitled to reach the latter determination, the regulation is valid under the AP A.

B. This Case Does Not Call for Application of a Heightened AP A Standard, If Any Exists.

[6] Petitioners argue that "[t]his case calls for more scrupulous application of the

State Farm standard in light of' the fact that it "involves human freedom," whereas "[t]he State Farm standard for application of § 706 of the AP A evolved through cases involving standard areas of administrative regulation, such as auto safety, pollution control, and financial transactions."

Petitioners cite no case that has ever adopted this proposition. Furthermore, even if "loss of liberty" were to be reviewed under a hypothetically heightened standard, such a standard would not be applicable to this case. An inmate has no liberty interest in a sentence reduction in exchange for completion of RDAP. McLean v. Crabtree, 173 F .3d 1176, 1184-85 (9th Cir.1999) ("[D]enial merely means that the inmate will have to serve out his sentence as expected." (quoting Jacks, 114 F.3d at 986 n. 4)). If there is no liberty interest in the reduction, then a denial of eligibility for that reduction cannot affect an inmate's liberty interest.

Petitioners also argue that the BOP's "history of violating the AP A" should be taken into account when applying the State Farm standard. But the BOP's unsuccessful attempts to enact the regulation at issue do not demonstrate willful noncompliance with statutory mandates, and no court has ever found this to be the case. We uphold the regulation under the usual AP A standard. See 5 U.S.C. § 706(2)(A); State Farm, 463 U.S. at 42-43, 103 S.Ct. 2856.

C. The Legal Error in the Accompanying Program Statement Does Not Render the Regulation Invalid.

[7] Petitioners note that in the Program Statement accompanying the 2009 rule, the BOP continued to define a felonin-possession crime under 18 U.S.C. § 922(g) as a crime of violence. See Pro-


gram Statement No. 5162.05, at 3-4 (Bureau of Prisons Mar. 16, 2009), availabl,e at www.bop.gov/policy/progstat/5162_005.pdf. This is in conflict with our pronouncement to the contrary in Davis, 109 F.3d at 569. However, Petitioners point to nothing in the administrative record indicating that the BOP relied on its categorization of § 922(g) as a "crime of violence" when reaching its decision to adopt § 550.55(b)(5)(ii). Instead, Petitioners shift the burden to the agency to affirmatively demonstrate that it has not relied on this legal error in enacting § 550.55(b)(5)(ii), by arguing that "the BOP failed to establish that the legal error did not taint the exercise of discretion in the parallel program statement." It does not make sense to require an agency to state all of the reasons for which it did not reach a decision, and Petitioners have not directed us to any authority supporting the proposition that this burden is on the agency. Because Petitioners have not identified any evidence in the record showing that in promulgating § 550.55(b)(5)(ii) the BOP relied on the proposition that a violation of § 922(g) is categorically a crime of violence under § 924(c)(3), they have not shown that the regulation is infected by the legal error contained in the program statement.

D. The BOP Was Not Required to Reach a Decision on the Basis of Statistics or Other Empirical Evidence.

[8] Petitioners argue that, in light of the "read[y] availab[ility ]" of relevant "empirical data or studies," the BOP's decision not to collect and consider any of that evidence invalidates the regulation. Petitioners contend that the regulation fails to comply with the "clear road map" that "list[s] the missing agency actions needed for compliance with the AP A" which we gave in Crickon.

In Crickon, we stated:

[T]he BOP gave no indication of the basis for its decision. It did not reference pertinent research studies, or case reviews. It did not describe the process employed to craft the exclusion. It did not articulate any precursor findings upon which it relied. It did not reveal the analysis used to reach the conclusion that the categorical exclusion was appropriate. Indeed, the administrative record is devoid of any substantive discussion of the rationale underlying the BOP's exercise of its discretion.

579 F.3d at 985. The flaw in Petitioners' reasoning is that Crickon did not indicate that these actions are necessary for an agency's compliance with the AP A; it merely listed several actions which would have been sufficient for AP A compliance. Crickon does not support Petitioners' argument that the BOP was required to develop and rely on detailed statistics before promulgating this rule.

In Sacora v. Thomas, we noted that "[t]he BOP ... is entitled to use its experience in interpreting and administering a statute." 628 F.3d at 1067. We held that, although "[i]t may have been preferable for the BOP to support its conclusions with empirical research," "it was reasonable for the BOP to rely on its experience, even without having quantified it in the form of a study." Id. at 1069. Petitioners distinguish Sacora because the rule at issue in that case limited half-way house placement to six months, and the agency did not have "a large trove of untapped . . . data" concerning the proposed change, whereas in this case, the BOP has many years of statistics based on its past efforts to categorically exclude certain prisoners from the early release incentive. This distinction is unpersuasive. Sacora made no mention of whether it would have been feasible for the BOP to gather data related


to halfway house placement, and no indication that this consideration was a factor in the decision. We follow Sacora and hold that the BOP is entitled to invoke its experience as a justification for the present rule.

E. The BOP's Interpretation Does Not Conflict with Congress' Expressed Intent.

[9] Petitioners argue that narrowing of the categories of statutorily eligible inmates is inconsistent with Congress' intent to "maximize the early release incentive and to reduce the prison population." Although it is true that our decision in Crickon criticized the BOP for enacting a regulation that was "difficult to square with Congress's expressed intent to provide an incentive to encourage maximum participation in the BOP's substance abuse treatment programs," 579 F.3d at 986, the idea that the regulation should be struck down solely because of perceived inconsistencies with congressional intent, as distinct from congressional command, is in tension with the Supreme Court's ruling in Lopez. See 531 U.S. at 242, 121 S.Ct. 714 ("[A]ll we must decide is whether the Bureau, the agency empowered to administer the early release program, has filled the statutory gap in a way that is reasonable in light of the legislature's revealed design. We think the agency's interpretation is reasonable both in taking account of preconviction conduct and in making categorical exclusions." (citations omitted) (internal quotation marks omitted)).

Furthermore, the administrative record reflects the fact that the Bureau has had some difficulty in accommodating all of the inmates who wish to participate in RDAP:

Currently, the Bureau has over 7000 inmates waiting for residential treatment that is provided with limited Bureau resources. Also, inmates are se-

lected for admission based on their proximity to release. Unfortunately, these two factors result in some inmates being on the waiting list for a long time.

Because the early release is such a powerful incentive, as evidenced by over 7000 inmates waiting to enter treatment, the Bureau must take appropriate measures to ensure that inmates requesting treatment actually have a substance abuse problem that can be verified with documentation.

74 Fed. Reg. at 1893. It would be unreasonable to criticize the Bureau for failing to maximize inmate participation when the Bureau is already struggling with its limited resources to accommodate all of the inmates who currently do wish to participate. It is clear to us that the agency is entitled to take a categorical approach to solving this problem.

III. CONCLUSION

We join our sister circuits in holding that the Bureau has not violated the AP A in excluding inmates from consideration for early release who have a current conviction for felon in possession or a past conviction for homicide, forcible rape, robbery, aggravated assault, arson, kidnapping, or child sexual abuse.

AFFIRMED.

USES OR CARRIES A FIREARM IN RELATION TO A CRIME OF VIOLENCE OR DRUG

TRAFFICKING CRIME

18 U.S.C. § 924(c)(1 )(A) " ... any person who, during and in relation to any crime of violence or

drug trafficking crime ... uses or carries a firearm, or who, in furtherance of any such crime,

possesses a firearm ... "

Provides for punishments in addition to the punishment for the crime of violence or drug trafficking

conviction --

- if firearm involved not less than 5 years (possessed), 7 years (brandished), 10 years (discharged)

- if short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon not less than 1 O

years

- if machine gun, destructive device, firearm silencer or firearm muffler not less than 30 years.

- on a second or subsequent conviction not less than 25 years and if involved

a machinegun, destructive device, a firearm silencer or firearm muffler life.

ARMED CAREER CRIMINAL

18 U.5.C. §924 (e)(1)

In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).

18 U.5.C. §924 (e)(2)(A) the term "serious drug offense" means--(i) an offense under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46, for which a maximum term of imprisonment of ten years or more is prescribed by law; or (ii) an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law; (B) the term "violent felony" means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that--(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another; and (C) the term "conviction" includes a finding that a person has committed an act of juvenile delinquency involving a violent felony.

In Johnson v. United States, 135 S. Ct. 2551, 2563 (2015), the Supreme Court held that "imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution's guarantee of due process".

Post-Johnson under the ACCA, a prior offense is a "violent felony" only if (i) it has as an element the use, attempted use, or threatened use of violent force; (ii) it is a generic burglary, generic arson or generic extortion; or (iii) it has as an element the use of explosives.

135 S. Ct. 2551 (2015)

By combining indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much

risk it takes for the crime to qualify as a violent felony, the residual clause

produces more unpredictability and arbitrariness than the Due Process

Clause tolerates.

We hold that imposing an increased sentence under the residual clause of the Armed Career Criminal Act

violates the Constitution's guarantee of due process.

Possession of Firearms and Dangerous Weapons in Federal Facilities

18 u.s.c. § 930

(a) Except as provided in subsection (d), whoever knowingly possesses or causes to be present a

firearm or other dangerous weapon in a Federal facility (other than a Federal court facility), or

attempts to do so, shall be fined under this title or imprisoned not more than 1 year, or both.

(b) Whoever, with intent that a firearm or other dangerous weapon be used in the commission of a

crime, knowingly possesses or causes to be present such firearm or dangerous weapon in a Federal

facility, or attempts to do so, shall be fined under this title or imprisoned not more than 5 years, or

both.

(c) A person who kills any person in the course of a violation of subsection (a) or (b), or in the course

of an attack on a Federal facility involving the use of a firearm or other dangerous weapon, or

attempts or conspires to do such an act, shall be punished as provided in sections 1111, 1112,

1113, and 1117.

(d) Subsection (a) shall not apply to--

(1) the lawful performance of official duties by an officer, agent, or employee of the United States, a

State, or a political subdivision thereof, who is authorized by law to engage in or supervise the

prevention, detection , investigation, or prosecution of any violation of law;

(2) the possession of a firearm or other dangerous weapon by a Federal official or a member of the

Armed Forces if such possession is authorized by law; or

(3) the lawful carrying of firearms or other dangerous weapons in a Federal facility incident to

hunting or other lawful purposes.

(e)(1) Except as provided in paragraph (2), whoever knowingly possesses or causes to be present a

firearm or other dangerous weapon in a Federal court facility, or attempts to do so, shall be fined

under this title, imprisoned not more than 2 years, or both.

(2) Paragraph (1) shall not apply to conduct which is described in paragraph (1) or (2) of subsection

(d) .

(f) Nothing in this section limits the power of a court of the United States to punish for contempt or to

promulgate rules or orders regulating, restricting, or prohibiting the possession of weapons within

any building housing such court or any of its proceedings, or upon any grounds appurtenant to such

building.

(g) As used in this section :

(1) The term "Federal facility" means a building or part thereof owned or leased by the Federal

Government, where Federal employees are regularly present for the purpose of performing their

official duties.

(2) The term "dangerous weapon" means a weapon, device, instrument, material, or substance,

animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury,

except that such term does not include a pocket knife with a blade of less than 2 % inches in length.

(3) The term "Federal court facility" means the courtroom, judges' chambers, witness rooms, jury

deliberation rooms, attorney conference rooms, prisoner holding cells, offices of the court clerks, the

United States attorney, and the United States marshal, probation and parole offices, and adjoining

corridors of any court of the United States.

(h) Notice of the provisions of subsections (a) and (b) shall be posted conspicuously at each public

entrance to each Federal facility, and notice of subsection (e) shall be posted conspicuously at each

public entrance to each Federal court facility, and no person shall be convicted of an offense under

subsection (a) or (e) with respect to a Federal facility if such notice is not so posted at such facility,

unless such person had actual notice of subsection (a) or (e), as the case may be.

THE A TO Z OF FIREARMSPortland, Oregon

March 22, 2017

AFPD Susan Russell and Investigator Dash Terry

What is a Firearm?

Who can’t have them?

What can’t you do with them?

And what happens if you do?

FIREARM DEFINITION:

18 U.S.C. § 921 (a)( (3) "The term "firearm" means (A) any weapon(including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive;(B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm."

This definition applies to most federal firearms offenses, including 18 U.S.C. § 922(g). Under this definition a firearm need not be operational or loaded to constitute a firearm because the definition includes the frame or receiver of the weapon by itself. See e.g. United States v. Hunter, 101 F.3d 82, 83-86 (9th Cir. 1996). Extensive modifications though can fundamentally alter a firearm's characteristics to such a degree that it no longer constitutes a firearm under this definition. See United States v. Wada, 232 F.Supp.2d 1079 (D.Or 2004)(dewatted firearm ornament was no longer a "firearm" as defined under federal law)(Judge Brown).

ANTIQUE FIREARM:

18 U.S.C. § 921 (a)(16):

The term "antique firearm" means--(A) any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type ofignition system) manufactured in or before 1898; or(B) any replica of any firearm described in subparagraph (A) if such replica--(i) is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition, or(ii) uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in theUnited States and which is not readily available in the ordinary channels of commercial trade; or(C) any muzzle loading rifle, muzzle loading shotgun, or muzzle loading pistol, which is designed touse black powder, or a black powder substitute, and which cannot use fixed ammunition. Forpurposes of this subparagraph, the term "antique firearm" shall not include any weapon whichincorporates a firearm frame or receiver, any firearm which is converted into a muzzle loadingweapon, or any muzzle loading weapon which can be readily converted to fire fixed ammunition byreplacing the barrel, bolt, breechblock, or any combination thereof.

Firearm defined:•Any weapon (including a starter gun) whichwill or is designed to or may readily beconverted to expel a projectile by the actionof an explosive.

•Frame or receiver of any such weapon.

•Firearm suppressor or silencer.

•Destructive device.

•Does not include an antique firearm.

For purposes of§ 922 and § 924 violations 18 U.S.C. § 921(a)(3)

Anatomy of a Firearm:•Frame or receiver: (usually contains serialnumber) although can be located on theslide.

•Bore: The bore in the inside of the gunsbarrel through which the projectile travelswhen fired.

•Breech: The Breech is the area of the firearmthat contains the rear end of the barrel,where the cartridge is inserted.

Anatomy of a Firearm:•Cylinder: The Cylinder is the part of a revolver thatholds cartridges in separate chambers. TheCylinder of a revolver rotates as the gun is cocked,brining each chamber into alignment with thebarrel.

•Grip: The Grip is the portion of a handgun or riflethat's used to hold the firearm.

•Hammer or Striker: The Hammer on a revolver isthe part that strikes the firing pin or the cartridgeprimer directly, detonating the primer whichdischarges the gun. In striker fired pistols, thestriker serves the same purpose but is containedinside the slide or action.

Anatomy of a Firearm:•Magazine: A Magazine is a spring-operatedcontainer, that can be fixed or detachable, whichholds cartridges for a repeating firearm.

•Muzzle: The muzzle of a gun is the front end of thebarrel where the projectile exits the firearm.

•Trigger: The Trigger is the lever that's puled orsqueezed to initiate the firing process.

•Trigger Guard: The trigger guard is the portion of afirearm that wraps around the trigger to provideboth protection and safety.

1. sucr.e 2. Barrel 3. Re<XXI spring assembly 4 . Firing pin 5 Spacer sleeve 6. Finng pin spring 7. Spnng cups s. Firing p.n sarery 9 Finng pm safety sprmg 10. Extractor 11 . Extractor depressot plunger 12 Extractor depressor plunget' 5µJing 20

,,

16.

13 Spring·loaded bearing 1~ ~ 28 14. Shdecoverp&ate \ ~ , d~'.).., ~~~~~~ 15. Rear sight ., . 1 Sa. Front sig,ht 16, Frame 17. Mag~ine eaten spring 18. Magazine c.alch 19. Shde lock spring 20. Slide lock 21 . Locking1 lblocfo: 22. Trigger mechantsm housing 23. Connector 24. Trigger spring 25. Trigger with 1rigger bar 26. Slide stop lever 27. Tti!)9et l)in 28. Trigger housing pin 29. Fol!O'.ver 30 Magaz:1ne spnng 31 Magai:ine ftoor plate 31 a Maga~ne Insert 32 Maga-zine tube 33. Looking block pin

17. \ \ ~ ~

SEMI-AUTOMATIC HANDGUN

Serial number can be found on the slide or the frame depending on model. (Important when determining

classification as a firearm.)

REVOLVER• Frame or receiver (with serial number)

REVOLVER FRAME

AMMUNITION18 U.S.C. § 921(a)(17)

(A) The term "ammunition" means ammunition or cartridge cases, primers, bullets, or propellentpowder designed for use in any firearm.(B) The term “armor piercing ammunition'' means-(i) a projectile or projectile core which may be used in a handgun and which is constructed entirely(excluding the presence of traces of other substances) from one or a combination of tungsten alloys,steel, iron, brass, bronze, beryllium copper, or depleted uranium; or(ii) a full jacketed projectile larger than .22 caliber designed and intended for use in a handgun andwhose jacket has a weight of more than 25 percent of the total weight of the projectile.(C) The term "armor piercing ammunition" does not include shotgun shot required by Federal orState environmental or game regulations for hunting purposes, a frangible projectile designed fortarget shooting, a projectile which the Attorney General finds is primarily intended to be used forsporting purposes, or any other projectile or projectile core which the Attorney General finds isintended to be used for industrial purposes, including a charge used in an oil. and gas wellperforating device.

AMMO

• Ammunition or cartridge cases, primers, bullets, or propellant powder designed for use in any firearm.

• Armor piercing ammunition

AMMUNITION OR BULLETS

AMMUNITION

Presenter

Presentation Notes

While case law is limited in this area, most cases have reached a similar conclusion. Several early cases claimed that the statute is unconstitutionally vague because it fails to define a period during which the drug use and the possession of the firearm must have occurred. United States v. Reed, 114 F.3d 1067, 1071 (10th Cir. 1997) held that the judicially created requirement of a temporal nexus is sufficient to overcome the vagueness of the statute. Courts now examine the "pattern and recency" of the defendant's drug use in determining if there is a temporal nexus between the possession of the firearm and drug use. Obviously, the easiest method of demonstrating drug use is to question the defendant regarding his or her drug use habits." Use" also may be demonstrated through drug tests and arrest records. If a defendant is found with a small quantity of drugs and a gun, good police work is essential in determining the most appropriate charge. If the defendant says that drugs are only for personal use, he or she may be charged under § 922(g) (3). If the defendant is a distributor, then § 924 (c) may apply.

PROHIBITED PERSONS:18 U.S.C. § 922(g)It shall be unlawful for any person--(1) who has been convicted in any court of, a crime punishable by imprisonment for a termexceeding one year;(2) who is a fugitive from justice;(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 ofthe Controlled Substances Act (21 U.S.C. 802));(4) who has been adjudicated as a mental defective or who has been committed to a mentalinstitution;(5) who, being an alien--(A) is illegally or unlawfully in the United States; or(B) except as provided in subsection (y)(2), has been admitted to the United States under anonimmigrant visa (as that term is defined in section 101 (a)(26) of the Immigration and NationalityAct (8 U.S.C. 1101 (a)(26)));(6) who has been discharged from the Armed Forces under dishonorable conditions;(7) who, having been a citizen of the United States, has renounced his citizenship;(8) who is subject to a court order that--(A) was issued after a hearing of which such person received actual notice, and at which suchperson had an opportunity to participate;(B) restrains such person from harassing, stalking, or threatening an intimate partner of such personor child of such intimate partner or person, or engaging in other conduct that would place an intimatepartner in reasonable fear of bodily injury to the partner or child; and(C)(i) includes a finding that such person represents a credible threat to the physical safety of suchintimate partner or child; or(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical forceagainst such intimate partner or child that would reasonably be expected to cause bodily injury; or(9) who has been convicted in any court of a misdemeanor crime of domestic violence,to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, anyfirearm or ammunition; or to receive any firearm or ammunition which has been shipped ortransported in interstate or foreign commerce.

Restoration of Civil Rights:18 U.S.C. § 921(a)(20):

"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."

Restoration of civil rights is evaluated under the law of the jurisdiction where defendant was convicted. United States v. Mc E/yea, 158 F.3d 1016 (9th Cir. 1998); United States v. Gomez, 911 F.2d 219 (9th Cir. 1990).

State law must restore rights completely - any weapons limitation under state law activates the federal ban on possessing all firearms. Caron v. United States, 524 U.S. 308 (1998); United States v. Qualls, 172 F.3d 1136 (9th Cir. 1999).

For prior federal felony conviction restoration of rights must be under federal law. Beecham v. United States, 511 U.S. 368 (1994). No federal court jurisdiction to consider motion to expunge conviction. United States v. Crowell, 374 F.3d 790 (9th Cir. 2004).

A separate and more narrowly drawn definition of firearm exists under 26 U.S.C. § 5845(a) and liststhose arms that are subject to registration under the tax code. Prohibited acts related to these armsare listed in 26 U.S.C. § 5861:

26 U.S.C. § 5845(a) Firearm. The term "firearm" means (1) a shotgun having a barrel or barrels ofless than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has anoverall length of less than 26 inches or a barrel or barrels of less than 18 inches in length; (3) a riflehaving a barrel or barrels of less than 16 inches in length; (4) a weapon made from a rifle if suchweapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16inches in length; (5) any other weapon, as defined in subsection (e); (6) a machinegun; (7) anysilencer (as defined in section 921 of Title 18, United States Code); and (8) a destructive device. Theterm "firearm" shall not include an antique firearm or any device (other than a machinegun ordestructive device) which, although designed as a weapon, the Secretary finds by reason of the dateof its manufacture, value, design, and other characteristics is primarily a collector's item and is notlikely to be used as a weapon.

26 U.S.C. § 5845(g):

The term "antique firearm" means any firearm not designed or redesigned for using rim fire orconventional center fire ignition with fixed ammunition and manufactured in or before 1898 (includingany matchlock, flintlock, percussion cap, or similar type of ignition system or replica thereof, whetheractually manufactured before or after the year 1898) and also any firearm using fixed ammunitionmanufactured in or before 1898, for which ammunition is no longer manufactured in the UnitedStates and is not readily available in the ordinary channels of commercial trade

PROHIBITED ACTS UNDER 18 U.S.C. § 5861

It shall be unlawful for any person--(a) to engage in business as a manufacturer or importer of or dealer in, firearms without having

paid the special (occupational) tax required by section 5801 for his business or having registered as required by section 5802; or

(b) to receive or possess a firearm transferred to him in violation of the provisions of this chapter; or

(c) to receive or possess a firearm made in violation of the provisions of this chapter; or(d) to receive or possess a firearm which is not registered to him in the National Firearms

Registration and Transfer Record; or(e) to transfer a firearm in violation of the provisions of this chapter; or(f) to make a firearm in violation of the provisions of this chapter; or(g) to obliterate, remove, change, or alter the serial number or other identification of a firearm

required by this chapter; or(h) to receive or possess a firearm having the serial number or other identification required by

this chapter obliterated, removed, changed, or altered; or(i) to receive or possess a firearm Which fs not identified by a serial number as required by this

chapter; or(j) to transport, deliver, or receive any firearm in interstate commerce which has not been

registered as required by this chapter; or(k) to receive or possess a firearm which has been imported or brought into the United States in

violation of section 5844; or(I) to make, or cause the making of, a false entry on any application, return, or record required

by this chapter, knowing such entry to be false.

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DEFINITIONS:NATIONAL FIREARMS ACT (NFA)

• Shotgun having a barrel or barrels of less than 18 inches in length

• Overall length of less than 26 inches

• Rifle having a barrel or barrels of less than 16 inches in length


• Machine gun

• Silencer

• Destructive device

26 U.S.C. § 5845. Definitions

PROHIBITED FIREARMS

• Firearms with obliterated serial numbers.

• Machine guns manufactured after May 19, 1986 unless FFL holder with proper documentation or individual with approved tax stamp.

• Short-barreled shotguns (defined as one with a barrel length of less than 18" or overall length less than 26").

Presenter

Presentation Notes

See 26 U.S.C. §§ 5845, 5861.

PROHIBITED FIREARMS

• Short-barreled rifles (defined as one with a barrel length of less than 16" or overall length less than 26").

• Silencers or suppressors without proper tax stamp.

• Destructive devices without proper tax stamp.

RIFLE

26 U.S.C. § 5845(c)

The term "rifle" means a weapon designed or redesigned, made or remade, and intended to be firedfrom the shoulder and designed or redesigned and made or remade to use the energy of theexplosive in a fixed cartridge to fire only a single projectile through a rifled bore for each single pull ofthe trigger, and shall include any such weapon which may be readily restored to fire a fixedcartridge.

AR-15-TYPE RIFLE EXPLODED

DIAGRAM .... ~~----· ~---· --~-·--l ---,,,,,,,.....,~, .......

SEMI AUTOMATIC RIFLE• Any repeating rifle which utilizes a portion of the energy of

a firing cartridge to extract the fired cartridge case and chamber the next round, and which requires a separate pull of the trigger to fire each cartridge.

AR-15 PISTOL• Not regulated under NFA

• No collapsible stock therefor barrel length is not regulated

• Not legal under some state laws

SHORT BARREL RIFLE OR “SBR”

• Rifle having a barrel or barrels of less than 16 inches in length


SHOTGUN:26 U.S.C. § 5845(d)

The term "shotgun" means a weapon designed or redesigned, made or remade, and intended to befired from the shoulder and designed or redesigned and made or remade to use the energy of theexplosive in a fixed shotgun shell to fire through a smooth bore either a number of projectiles (ballshot) or a single projectile for each pull of the trigger, and shall include any such weapon which maybe readily restored to fire a fixed shotgun shell.

SHOTGUN

MACHINEGUN26 U.S.C. § 5845(b) Machinegun

The term "machinegun" means any weapon which shoots, is designed to shoot, or can be readilyrestored to shoot, automatically more than one shot, without manual reloading, by a single functionof the trigger. The term shall also include the frame or receiver of any such weapon, any partdesigned and intended solely and exclusively, or combination of parts designed and intended, foruse in converting a weapon into a machinegun, and any combination of parts from which amachinegun can be assembled if such parts are in the possession or under the control of a person.

MACHINE GUN• Any weapon which shoots, is designed to shoot, or can be

readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.

Presenter

Presentation Notes

The frame or receiver of any such weapon Any part solely designed for use in converting a weapon into a machine gun Any combination of parts from which a machine gun can be assembled (b) Machine gun The term ‘'machine gun'' means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machine gun, and any combination of parts from which a machine gun can be assembled if such parts are in the possession or under the control of a person.

FIREARM SILENCER OR MUFFLER

18 U.5 .C. § 921(a)(24)

The terms "firearm silencer" and "firearm muffler" mean any device for silencing, muffling, ordiminishing the report of a portable firearm, including any combination of parts, designed orredesigned, and intended for use in assembling or fabricating a firearm silencer or firearm muffler,and any part intended only for use in such assembly or fabrication

SILENCER OR SUPPRESSOR• The terms "firearm silencer" and "firearm suppressor" mean any device for

silencing, muffling, or diminishing the report of a portable firearm

Presenter

Presentation Notes

including any combination of parts, designed or redesigned, and intended for use in assembling or fabricating a firearm silencer or firearm muffler, and any part intended only for use in such assembly or fabrication.

FIREARM SENTENCING UNDER SENTENCING GUIDELINESUSSG § 2K2.1(a) Base Offense Level (Apply the Greatest):(1) 26, if (A) the offense involved a (i) semiautomatic firearm that is capable of accepting a largecapacity magazine; or (ii) firearm that is described in 26 U.S.C. 5845(a); and (B) the defendantcommitted any part of the instant offense subsequent to sustaining at least two felony convictions ofeither a crime of violence or a controlled substance offense;(2) 24, if the defendant committed any part of the instant offense subsequent to sustaining at leasttwo felony convictions of either a crime of violence or a controlled substance offense;(3) 22, if (A) the offense involved a (i) semiautomatic firearm that is capable of accepting a largecapacity magazine; or (ii) firearm that is described in 26 U.S.C. 5845(a); and (B) the defendantcommitted any part of the instant offense subsequent to sustaining one felony conviction of either acrime of violence or a controlled substance offense;(4) 20, if-.-(A) the defendant committed any part of the instant offense subsequent to sustaining one felonyconviction of either a crime of violence or a controlled substance offense; or(B) the (i) offense involved a (I) semiautomatic firearm that is capable of accepting a large capacitymagazine; or (II) firearm that is described in 26 U.S.C. 5845(a); and (ii) defendant (I) was aprohibited person at the time the defendant committed the instant offense; (II) is convicted under 18U.S.C. 922(d); or (Ill) is convicted under 18 U.S.C. 922(a)(6) or 924(a)(1)(A) and committed theoffense with knowledge, intent. or reason to believe that the offense would result in the transfer of afirearm or ammunition to a prohibited person;(5) 18, if the offense involved a firearm described in 26 U.S.C. § 5845(a);(6) 14, if the defendant (A) was a prohibited person at the time the defendant committed the instantoffense (B) is convicted under 18 U.S.C. 922(d); or (C) is convicted under 18 U.S.C. 922(a)(6) or924(a)(1)(A) and committed the offense with knowledge, intent, or reason to believe that the offensewould result in the transfer of a firearm or ammunition to a prohibited person;(7) 12, except as provided below; or(8) 6, if the defendant is convicted under 18 U.S.C. § 922(c), (e), (f), (m), (s), (t). or (x)(1), or 18u.s.c. § '1115.

SEMIAUTOMATIC FIREARM CAPABLE OF ACCEPTING LARGE CAPACITY MAGAZINE

USSG 2K2.1 Application Note 2.

Semiautomatic Firearm That Is Capable of Accepting a Large Capacity Magazine.--Forpurposes of subsections (a)(1), (a)(3), and (a)(4), a "semiautomatic firearm that is capable ofaccepting a large capacity magazine" means a semiautomatic firearm that has the ability to firemany rounds without reloading because at the time of the offense (A) the firearm had attached to it amagazine or similar device that could accept more than 15 rounds of ammunition; or (8) a magazineor similar device that could accept more than 15 rounds of ammunition was in close proximity to thefirearm. This definition does not include a semiautomatic firearm with an attached tubular devicecapable of operating only with .22 caliber rim fire ammunition.

DEFINITION OF 'FELONY CONVICTION' under USSG §2K2.1

"Felony conviction" means a prior adult federal or state conviction for an offense punishable bydeath or imprisonment for a term exceeding one year, regardless of whether such offense 1sspecifically designated as a felony and regardless of the actual sentence fmposed. A conviction foran offense committed at age eighteen years or older is an adult conviction. A conviction for anoffense committed prior to age eighteen years is an adult conviction if it is classified as an adultconviction under the laws of the jurisdiction in which the defendant was convicted (e.g., a federalconviction for an offense committed prior to the defendant's eighteenth birthday is an adult conviction if the defendant was expressly proceeded against as an adult).

For purposes of calculating whether the enhanced base offense levels under USSG § 4K2.1 (a)(1 ),(2), (3), or (4)(A) apply, only felony convictions that receive criminal history points under§ 4A 1.1 can be used.

DEFINITION 'CRIME OF VIOLENCE' AND 'CONTROLLED SUBSTANCE OFFENSE' UNDERSENTENCING GUIDELINES

USSG § 481.2

(a) The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that-(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C.5845(a) or explosive material as defined in 18 U.S.C. 841(c).

(b) The term "controlled substance offense" means an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, Import, export, distribute, or dispense.

BEFORE AUGUST 1, 2016• Adopted from 18 U.S.C. § 924(e) in 1989

U.S.S.G. § 4B1.2(a) The term "crime of violence" means any offense under federal or state law punishable by imprisonment for a term exceeding one year that --

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

DELETED – RESIDUAL CLAUSE

The Commission determined that the residual clause at §4B1.2 implicates many of the same concerns cited by the Supreme Court in Johnson, and, as a matter of policy, amends §4B1.2(a)(2) to strike the clause. Removing the residual clause has the advantage of

alleviating the considerable application difficulties associated with that clause, as expressed by judges, probation officers, and litigants. Furthermore, removing the clause will alleviate

some of the ongoing litigation and uncertainty resulting from the Johnson decision.

AFTER AUGUST 1, 2016U.S.S.G. § 4B1.2

(a) The term “crime of violence” means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that--

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, burglary of a dwelling, arson, or extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c) involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

BUT . . .

New Application Note 4:

4. Upward Departure for Burglary Involving Violence.—There may be cases in which a burglary involves violence, but does not qualify as a ‘crime of violence’ as defined in §4B1.2(a) and, as a result, the defendant does not receive a higher offense level or higher Criminal History Category that would have applied if the burglary qualified as a ‘crime of violence.’ In such a case, an upward departure may be appropriate.

QUANTITY

USSG § 2K2.1 (b) Specific Offense Characteristics(1)If the offense involved three or more firearms, increase as follows:

Number of Firearms: Increase in Level:

(A) 3-7 add 2(B) 8-24 add 4(C) 25-99 add 6(D) 100-199 add 8(E) 200 or more add 10

POSSESSED SOLELY FOR LAWFUL SPORTING PURPOSES OR COLLECTION

USSG §2K2.1(b)(2)

If the defendant, other than a defendant subject to subsection (a)(1 ), (a)(2), (a)(3), (a)(4), or (a)(5), possessed all ammunition and firearms solely for lawful sporting purposes or collection, and did not unlawfully discharge or otherwise unlawfully use such firearms or ammunition, decrease the offense level determined above to level 6.

Application Note 6 Application of Subsection (b)(2).--Under subsection (b)(2), "lawful sporting purposes or collection" as determined by the surrounding circumstances, provides for a reduction to an offense level of 6. Relevant surrounding circumstances include the number and type of firearms, the amount and type of ammunition, the location and circumstances of possession and actual use, the nature of the defendant's criminal history (e.g., prior convictions for offenses involving firearms),and the extent to which possession was restricted by local law. Note that where the base offense level is determined under subsections (a)(1)-(a)(5), subsection (b)(2) is not applicable.

Note - this sentencing provision applies to "prohibited person" under USSG 2K2.1 (a)(6).

DESTRUCTIVE DEVICES ENHANCEMENT

USSG §2K2.1 (b)

(3) If the offense involved--(A) a destructive device that is a portable rocket, a missile, or a device for use in launching aportable rocket or a missile, increase by 15 levels; or(B) a destructive device other than a destructive device referred to in subdivision (A), increase by 2levels.

Application Note 1. "Destructive device" has the meaning given that term in 26 U.S.C. § 5845(f).

26 U.S.C. § 5845(f) Destructive device.--The term "destructive device" means (1) any explosive,incendiary, or poison gas (A) bomb, (B) grenade, (C) rocket having a propellant charge of more thanfour ounces, (D) missile having an explosive or incendiary charge of more than one-quarter ounce,(E) mine, or (F) similar device; (2) any type of weapon by whatever name known which will, or whichmay be readily converted to, expel a projectile by the action of an explosive or other propellant, thebarrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun orshotgun shell which the Secretary finds is generally recognized as particularly suitable for sportingpurposes; and (3) any combination of parts either designed or intended for use in converting anydevice into a destructive device as defined in subparagraphs (1) and (2) and from which adestructive device may be readily assembled. The term "destructive device" shall not include anydevice which is neither designed nor redesigned for use as a weapon; any device, althoughoriginally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic. linethrowing, safety, or similar device; surplus ordnance sold, loaned, or given by the Secretary of theArmy pursuant to the provisions of section 4684(2), 4685, or 4686 of Title 1 O of the United StatesCode; or any other device which the Secretary finds is not likely to be used as a weapon, or is anantique or is a rifle which the owner intends to use solely for sporting purposes.Application Note 7. Destructive Devices.--A defendant whose offense involves a destructive devicereceives both the base offense level from the subsection applicable to a firearm listed in 26 U.S.C. §5845(a) (e.g., subsection (a)(1). (a)(3), (a)(4)(B). or (a)(5)), and the applicable enhancement undersubsection (b)(3). Such devices pose a considerably greater risk to the public welfare than otherNational Firearms Act weapons.

OBLITERATED SERIAL NUMBER OR STOLEN FIREARM ENHANCEMENT

USSG § 2K2.1 (b) (4) If any firearm (A) was stolen, increase by 2 levels; or (B) had an altered orobliterated serial number, increase by 4 levels.

A serial number is altered or obliterated, where the number is not discernable to the unaided eye, but remains detectable via microscopy. United States v. Carter. 421 F.3d 909 (9th Cir. 2005).

USED OR POSSESSED IN CONNECTION WITH ANOTHER FELONY OFFENSEENHANCEMENT

USSG §2K2.1(b)(6) If the defendant-

(B) Used or possessed any firearm or ammunition in connection with another felony offense; orpossessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense,increase by 4 levels. If the resulting offense level is less than level 18, increase to level 18.Pay close attention to Application Note 14(B)(ii) which states that subsection (b)(6)(8) applies "in the case of a drug trafficking offense in which a firearm is found in close proximity to drugs, drug manufacturing materials, or drug paraphernalia."

BANK ROBBERY - SENTENCING ENHANCEMENT FOR WEAPONS

USSG 2B3.1 (b)(2) (A) lf a firearm was discharged, increase by 7 levels; (8) if a firearm was otherwise used, increase by 6 levels; (C) if a firearm was brandished or possessed, increase by 5 levels; (D) if a dangerous weapon was otherwise used, increase by 4 levels; (E) if a dangerous weapon was brandished, or possessed, increase by 3 levels; or (F) if a threat of death was made, increase by 2 levels.

USSG 2B3.1 (b)(6) If a firearm, destructive device, or controlled substance was taken, or if the taking of such item was an object of the offense, increase by 1 level.

Application Notes:

1. "Firearm," "destructive device," "dangerous weapon," "otherwise used," "brandished," . . . are defined in the Commentary to § 181 .1

2. Consistent with Application Note 1 (D)(ii) of§ 181 .1 (Application Instructions), an object shall be considered to be a dangerous weapon for purposes of subsection (b)(2)(E) if (A) the object closely resembles an instrument capable of inflicting death or serious bodily injury; or (8) the defendant used the object in a manner that created the impression that the object was an instrument capable of inflicting death or serious bodily injury (e.g., a defendant wrapped a hand in a towel during a bank robbery to create the appearance of a gun).

EXAMPLES OF OTHER WEAPON ENHANCEMENTS UNDER THE SENTENCING GUIDELINES

Theft, Embezzlement, Stolen Property

USSG §281.1(15) If the offense involved (A) the conscious or reckless risk of death or serious bodily injury; or (B) possession of a dangerous weapon (including a firearm) in connection with the offense, increase by 2 levels. If the resulting offense level is less than level 14, increase to level 14.

Extortion by Force

USSG §2B3.2(b)(3)(A) (i) If a firearm was discharged, increase by 7 levels; (ii) if a firearm was otherwise used, increase by 6 levels; (iii) if a firearm was brandished or possessed, increase by 5 levels; (iv) if a dangerous weapon was otherwise used, increase by 4 levels; or (v) if a dangerousweapon was brandished' or possessed, increase by 3 levels.

Counterfeiting

USSG §285.1 (4) If a dangerous weapon (including a firearm) was possessed in connection with the offense, increase by 2 levels. If the resulting offense level is less than level 13, increase to level 13.

Extortionate Extension of Credit

USSG §2E2.1(b)(1)(A) If a firearm was discharged increase by 5 levels; or (B) if a dangerous weapon (including a firearm) was otherwise used, increase by 4 levels; or (C) if a dangerous weapon (including a firearm) was brandished or possessed, increase by 3 levels.

Peonage

USSG §2H4.1 (b)(2)(1 )(A) If any victim sustained permanent or life-threatening bodily injury, increase by 4 levels; or (B) if any victim sustained serious bodily injury, increase by 2 levels. (2) If (A) a dangerous weapon was used, increase by 4 levels; or (B) a dangerous weapon was brandished, or the use of a dangerous weapon was threatened, increase by 2 levels.(3) If any victim was held in a condition of peonage or involuntary servitude for (A) more than one year, increase by 3 levels; (B) between 180 days and one year, increase by 2 levels; or (C) more than 30 days but less than 180 days, increase by 1 level.

Smuggling or Transportation of Alien

USSG §2L 1.1(b)(5) (A) If a firearm was discharged, increase by 6 levels, but If the resulting offense level is less than level 22, increase to level 22.(B) If a dangerous weapon (including a firearm) was brandished or otherwise used, increase by 4 levels1 but if the resulting offense level is less than level 20, increase to level 20. (C) If a dangerous weapon (including a firearm) was possessed, increase by 2 levels, but if the resulting offense level is less than level 18, increase to level 18.

GUIDELINE SENTENCING ENHANCEMENT FOR WEAPONS IN DRUG OFFENCES

USSG §201.1(b)(1) If a dangerous weapon (including a firearm) was possessed, increase by 2 levels.(2) If the defendant used violence, made a credible threat to use violence, or directed the use of violence, increase by 2 levels.

IMPACT OF FIREARM OR DANGEROUS WEAPON ON "SAFETY VALVE" ELIGIBILITY

USSG § 5C1.2 allows the court to "impose a sentence in accordance with the applicable guidelines without regard to any statutory minimum sentence" but only if the court finds, among other things~(a)(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense.

FIREARMS and RESIDENTIAL DRUG AND ALCOHOL PROGRAM (RDAP)

Per BOP discretion, prisoners may not be eligible for early release pursuant to 18 U.S.C. § 3621(e) if they are currently convicted of a felony offense involving carrying, possession or use of a firearm, dangerous weapon or explosives, or where a specific offense characteristic was applied for possession of a weaponunder the Sentencing Guidelines. Peck v. Thomas, 697 F.3d 767 (9th Cir. 2012).

USES OR CARRIES A FIREARM IN RELATION TO A CRIME OF VIOLENCE OR DRUGTRAFFICKING CRIME

18 U.S.C. § 924(c)(1)(A) " . . . any person who, during and in relation to any crime of violence ordrug trafficking crime .. . uses or carries a firearm, or who, in furtherance of any such crime,possesses a firearm ... “

Provides for punishments in addition to the punishment for the crime of violence or drug traffickingconviction --- if firearm involved not less than 5 years (possessed), 7 years (brandished), 10 years (discharged)- if short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon not less than 10years- if machine gun, destructive device, firearm silencer or firearm muffler not less than 30 years.- on a second or subsequent conviction not less than 25 years and if involved a machinegun, destructive device, a firearm silencer or firearm muffler, life.

ARMED CAREER CRIMINAL

18 U.5.C. §924 (e)(1)In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(9).

18 U.S.C. §924 (e)(2)(A) the term "serious drug offense" means—(i) an offense under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C'. 951 et seq.), or chapter 705 of title 46, for which a maximum term of imprisonment of ten years or more is prescribed by law; or(ii) an offense under State law, invorving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law;(B) the term "violent felony" means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency invo1ving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that--(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another; and(C) the term "conviction" includes a finding that a person has committed an act of juvenile delinquency involving a violent felony.

In Johnson v. United States, 135 S. Ct. 2551, 2563 (2015), the Supreme Court held that "imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution's guarantee of due process".Post-Johnson under the ACCA, a prior offense is a "violent felony" only if (i) it has as an element the use, attempted use, or threatened use of violent force; (ii) it is a generic burglary, generic arson or generic extortion; or (iii) it has as an element the use of explosives.

JOHNSON V. UNITED STATES

135 S. Ct. 2551 (2015)

By combining indeterminacy about how to measure the risk posed by a

crime with indeterminacy about how much risk it takes for the crime to

qualify as a violent felony, the residual clause produces more unpredictability and arbitrariness than the Due Process

Clause tolerates.

Decisions under the residual clause have proved to be anything but evenhanded, predictable, or consistent.

We hold that imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates

the Constitution's guarantee of due process.

Possession of Firearms and Dangerous Weapons in Federal Facilities18 U.S.C. § 930

(a) Except as provided in subsection (d), whoever knowingly possesses or causes to be present afirearm or other dangerous weapon in a Federal facility (other than a Federal court facility}, orattempts to do so, shall be fined under this title or imprisoned not more than 1 year, or both.(b) Whoever, with intent that a firearm or other dangerous weapon be used in the commission of a crime, knowingly possesses or causes to be present such firearm or dangerous weapon in a Federal facility, or attempts to do so, shall be fined under this title or imprisoned not more than 5 years, or both.(c) A person who kills any person in the course of a violation of subsection (a) or (b), or in the course of an attack on a Federal facility involving the use of a firearm or other dangerous weapon, or attempts or conspires to do such an act, shall be punished as provided in sections 1111 , 1112, 1113, and 1117.

(d) Subsection (a) shall not apply to--(1) the lawful performance of official duties by an officer, agent, or employee of the United States, aState, or a political subdivision thereof, who is authorized by law to engage in or supervise theprevention, detection, investigation, or prosecution of any violation of law;(2) the possession of a firearm or other dangerous weapon by a Federal official or a member of theArmed Forces if such possession is authorized by law; or(3) the lawful carrying of firearms or other dangerous weapons in a Federal facility incident tohunting or other lawful purposes.(e)(1) Except as provided in paragraph (2), whoever knowingly possesses or causes to be present afirearm or other dangerous weapon in a Federal court facility, or attempts to do so, shall be finedunder this title, imprisoned not more than 2 years, or both.(2) Paragraph (1) shall not apply to conduct which is described in paragraph (1) or (2) of subsection(d).(f) Nothing in this section limits the power of a court of the United States to punish for contempt or topromulgate rules or orders regulating, restricting, or prohibiting the possession of weapons withinany building housing such court or any of its proceedings, or upon any grounds appurtenant to suchbuilding.(g) As used in this section:(1) The term "Federal facility" means a building or part thereof owned or leased by the FederalGovernment, where Federal employees are regularly present for the purpose of performing theirofficial duties.

(2) The term "dangerous weapon" means a weapon, device, instrument, material, or substance,animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury,except that such term does not include a pocket knife with a blade of less than 2.5 inches in length.(3) The term "Federal court facility” means the courtroom, judges' chambers, witness rooms, jurydeliberation rooms, attorney conference rooms, prisoner holding cells, offices of the court clerks, theUnited States attorney, and the United States marshal, probation and parole offices, and adjoiningcorridors of any court of the United States.(h) Notice of the provisions of subsections (a) and (b) shall be posted conspicuously at each publicentrance to each Federal facility, and notice of subsection (e) shall be posted conspicuously at eachpublic entrance to each Federal court facility, and no person shall be convicted of an offense undersubsection (a) or (e) with respect to a Federal facility if such notice is not so posted at such facility,unless such person had actual notice of subsection (a) or (e), as the case may be.

POSSESSION

Possession can be actual, constructive, joint or sole. A person has possession of something "if the person knows of its presence and has physical control of it, or knows of its presence and has the power and intention to control it." United States v. Perez, 67 F.3d 1371, 1380 n.8 (9th Cir. 1995), withdrawn in part on reh'g by 116 F.3d 840 (9th Cir. 1997). Ownership may be circumstantial evidence but cannot substitute for actual or constructive possession requirement. United States v. Casterline, 103 F.3d 76,78-79 (9th Cir. 1996).

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CLE SEMINAR - Federal Public Defender - District of Oregon

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