United States v. Philp

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0308p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

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No. 05-5308

v.

,

>

THOMAS VERNON PHILP, -

Defendant-Appellant. -

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Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

No. 03-00013—Todd J. Campbell, District Judge.

Argued: January 25, 2006

Decided and Filed: August 22, 2006

Before: SILER, SUTTON, and COOK, Circuit Judges.

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COUNSEL

ARGUED: Samuel J. Harris, Cookeville, Tennessee, for Appellant. Philip H. Wehby,

ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee, for Appellee. ON BRIEF:

Samuel J. Harris, Cookeville, Tennessee, for Appellant. Philip H. Wehby, ASSISTANT UNITED

STATES ATTORNEY, Nashville, Tennessee, for Appellee.

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OPINION

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SILER, Circuit Judge. Defendant Thomas Philp appeals the denial of his motion to dismiss

count one of his indictment charging him with being a felon-in-possession of a firearm in violation

of 18 U.S.C. §§ 924 and 922(g)(1). Philp asserts that his breaking and entering of an unoccupied

dwelling conviction from 30 years ago cannot support the felon-in-possession charge because, under

Michigan law, his “civil rights were restored” by operation of law and therefore his breaking and

entering conviction cannot be considered a “conviction.” Thus, the question we must address is

whether “breaking and entering of an unoccupied building” is a “specified felony” under MICH.

COMP. LAWS ANN. § 750.224(f). Conviction of a specified felony requires that a person apply for

the right to possess firearms, which Philp concedes he did not do. Because the Michigan Court of

Appeals affirmatively decided this question in Tuggle v. Michigan Department of State Police, 712

1

No. 05-5308 United States v. Philp Page 2

N.W.2d 750 (Mich. Ct. App. 2005),1 we AFFIRM his conviction and the district court’s denial of

Philp’s motion to dismiss.

BACKGROUND

Philp was convicted in 1970 of breaking and entering of an unoccupied building in Michigan.

He argues his civil rights were restored by virtue of the MICH. COMP. LAWS ANN. § 7540.224f,

which provides that a convicted felon may possess a firearm upon the expiration of 3 years after

completion of probation or parole. The relevant portions of MICH. COMP. LAWS ANN. § 7540.224f

provide:

(1) Except as provided in subsection (2), a person convicted of a felony shall not

possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm in

this state until the expiration of 3 years after all of the following circumstances exist:

(a) The person has paid all fines imposed for the violation.

(b) The person has served all terms of imprisonment imposed for the

violation.

(c) The person has successfully completed all conditions of probation

or parole imposed for the violation.

(2) A person convicted of a specified felony shall not possess, use, transport, sell,

purchase, carry, ship, receive, or distribute a firearm in this state until all of the

following circumstances exist:

(a) The expiration of 5 years after all of the following circumstances

exist:

(i) The person has paid all fines imposed for the violation.

(ii) The person has served all terms of imprisonment imposed

for the violation.

(iii) The person has successfully completed all

conditions of probation or parole imposed for the

violation.

(b) The person’s right to possess, use, transport, sell, purchase, carry, ship,

receive, or distribute a firearm has been restored pursuant to section 4 of Act

No. 372 of the Public Acts of 1927, being section 28.424 of the Michigan

Compiled Laws.

***

(6) As used in subsection (2), “specified felony” means a felony in which 1 or more

of the following circumstances exist:

1

The Michigan Supreme Court denied an application for leave to appeal this decision on July 31, 2006, ___

N.W.2d ___, 2006 WL 2111110, at *1.

No. 05-5308 United States v. Philp Page 3

(i) An element of that felony is the use, attempted use, or

threatened use of physical force against the person or

property of another, or that by its nature, involves a

substantial risk that physical force against the person or

property of another may be used in the course of committing

the offense.

***

(v) The felony is burglary of an occupied dwelling or

breaking and entering an occupied dwelling, or arson.

The Government argues that Philp’s felony was a “specified felony” and that those convicted of the

“specified felonies” must apply to have their rights restored to a Concealed Weapon Licensing

Board in the county of their residence. See MICH. COMP. LAWS ANN. § 28.424. Philp admits that

he did not apply and concedes that he loses if breaking and entering of an unoccupied dwelling is

a specified felony.

The district court ruled that Philp’s conviction of breaking and entering includes the element

of “breaking,” Michigan law holds that the “breaking” element is satisfied by evidence of “slight

force,” and, thus, his felony meets the criteria for a “specified felony.” It noted Philp’s argument

that “slight force” does not equate to “physical force” as used in the “specified felony” definition

but rejected it on the grounds that “slight force certainly requires use of physical force,” which is

“physical force” against the person or property of another contained in the “specified felony”

definition. The district court concluded that Philp committed a “specified felony,” which required

him to have applied for restoration of his firearm rights, which he admittedly did not do. Thus, it

denied his motion to dismiss.

ANALYSIS

We review de novo a district court's denial of a motion to dismiss an indictment on legal

grounds. United States v. Crayton, 357 F.3d 560, 564 (6th Cir. 2004) (citations omitted). We apply

state law as decided by the Michigan Supreme Court. When an issue is yet to be decided by the

Michigan Supreme Court, we look to “relevant data,” including state appellate decisions. See

Kingsley Assocs., Inc. v. Moll PlastiCrafters, Inc., 65 F.3d 498, 507 (6th Cir. 1995). “Relevant data

include decisions of the state appellate courts, and those decisions should not be disregarded unless

we are presented with persuasive data that the Michigan Supreme Court would decide otherwise.”

Id. at 507.

We are aware of only two persuasive cases directly addressing what constitutes a “specified

felony” under Michigan law. The Eleventh Circuit in United States v. Tait, 202 F.3d 1320, 1325

(11th Cir. 2000) (attempted larceny from a motor vehicle is not a specified felony), and the

Michigan Court of Appeals in Tuggle v. Dept. of State Police, 712 N.W.2d 750, 756 (Mich. Ct. App.

2005) (breaking and entering of unoccupied dwelling is a specified felony), reach irreconcilable

results.

We will accept the holding of a state intermediate appellate court with respect to state law

unless we determine the highest court of the state would decide otherwise. See Hicks v. Feiock, 485

U.S. 624, 630 n. 3 (1988). Without demonstrating that the Michigan Supreme Court would decide

that breaking and entering of an unoccupied dwelling is not a specified felony, we are “not at liberty

to depart from the state appellate court's resolution” of this issue of state law. Id. at 629. There is

no evidence that the Michigan Supreme Court would decide contrary to Tuggle. “In order to

determine the Michigan law, we thus turn to the decisions of the Michigan intermediate courts,

No. 05-5308 United States v. Philp Page 4

which are binding authority in federal courts in the absence of any Michigan Supreme Court

precedent.” Hampton v. United States, 191 F.3d 695, 701-02 (6th Cir. 1999) (citations omitted).

While this appeal was pending the Michigan Court of Appeals decided Tuggle, which

categorized attempted breaking and entering of an unoccupied dwelling as a “specified felony.” 712

N.W.2d at 756.2 In facts nearly identical to the present case, Tuggle attempted to purchase a firearm

in 2001 after he completed his sentence for attempted breaking and entering of an unoccupied

dwelling in 1985. His application for purchase of a firearm was denied on the basis that he had

committed a specified felony and did not comply with the requirements of MICH. COMP. LAWS ANN.

§ 750.224f. He challenged that decision in a declaratory action on the ground that attempted

breaking and entering of an unoccupied building was not a specified felony. The trial court granted

summary judgment stating:

The crime of breaking and entering an unoccupied dwelling unquestionably is a

felony that[,] by its nature, involves substantial risk that physical force against the

property of another may be used in the course of committing the offense. Therefore,

this Court holds that this felony is a “specified felony.”

Tuggle, 712 N.W.2d 750, 756-56. Tuggle appealed to the Michigan Court of Appeals, which

declined to negate the “physical force against the person or property of another” portion of the

definition of specified felony. The court held that breaking and entering was a specified felony

because of the plain language of the statute and the likelihood that felonies could easily fall within

one or more categories of the definition of specified felonies under MICH. COMP. LAWS ANN.

750.224f(6).

Philp relies on Tait where the Eleventh Circuit addressed our issue of interpreting Michigan

law regarding a “specified felony” in the context of Tait’s attempted-larceny-from-a-motor-vehicle

conviction. 202 F.3d at 1325. The Tait court held that “Tait’s civil rights were unreservedly restored

to him by operation of Michigan law, and Tait was not subject to prosecution under 18 U.S.C.

§ 922(g)(1).” The court upheld the district court’s determination that “a logical interpretation of the

statute would be that physical force is not required.”

The government distinguishes Tait as being an analysis of an offense for auto larceny

without a “breaking.” We agree that the defendant in Tait committed a different crime so the

differing elements must factor into the assessment of the applicability of the Tait opinion. Because

there is no indication that the Michigan Supreme Court would not follow Tuggle, we hold that

breaking and entering of an unoccupied dwelling is a specified felony. Philp failed to restore his

right to possess a firearm and thus illegally possessed that firearm. MICH. COMP. LAWS ANN.

§ 750.224f(2); People v. Brown, 642 N.W.2d 382, 383 (Mich. Ct. App. 2002).

AFFIRMED.

2

This case was approved for publication on February 9, 2006.