United States v. Wilson, Lee A.

In the

United States Court of Appeals

For the Seventh Circuit

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No. 04-4022

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LEE A. WILSON,

Defendant-Appellant.

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Appeal from the United States District Court

for the Western District of Wisconsin.

No. 04 CR 88—Barbara B. Crabb, Chief Judge.

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ARGUED APRIL 13, 2005—DECIDED FEBRUARY 2, 2006

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Before EASTERBROOK, KANNE, and SYKES, Circuit Judges.

SYKES, Circuit Judge. Defendant Lee Wilson was con-

victed by a jury of being a felon in possession of ammuni-

tion, contrary to 18 U.S.C. § 922(g)(1). The predicate felony

is a Wisconsin sexual assault conviction for which Wilson

served four years in prison and was discharged with a

partial restoration of civil rights. His discharge certificate

advised him that certain of his civil rights were restored but

he was prohibited from possessing firearms unless he

received a pardon from the governor lifting the prohibition.

In unsuccessful motions to dismiss both before and after

trial, Wilson argued that his prior conviction is not a

qualifying felony within the meaning of 18 U.S.C.

2 No. 04-4022

§ 921(a)(20), which excludes from the scope of § 922(g)(1)

any convictions for which civil rights have been restored

unless the restoration of civil rights “expressly provides

that the person may not . . . possess . . . firearms.” Wilson

argued that his prior conviction disabled him from pos-

sessing firearms only—not ammunition—because neither

Wisconsin law nor the terms of his discharge certificate

prohibited him from possessing ammunition. The dis-

trict court rejected this argument and he renews it on

appeal. He also raises evidentiary and sentencing issues.

We affirm.

I. Background

In 1999 Wilson was convicted in Wisconsin circuit court

of Second Degree Sexual Assault of a Child and sentenced

to four years’ imprisonment. Upon his release from state

prison in June 2003, Wilson received a discharge certificate

from the Wisconsin Department of Corrections advising him

that some of his civil rights were restored.1 Specifically, the

certificate advised him that his right to vote and eligibility

for jury duty were restored. Importantly, however, the

certificate also stated as follows: “Civil rights that are not

restored to felon: 1. Firearms may not be used or possessed

unless a pardon is received from the governor which does

not restrict possession of firearms. 2. Public office can not

be held unless a pardon is obtained from the governor.”

In July 2004 Wilson was indicted on a charge of being

a felon in possession of ammunition, contrary to 18 U.S.C.

§ 922(g)(1). Prior to trial Wilson moved to dismiss, arguing

that he was not a convicted felon for purposes of § 922(g)(1)

1

See WIS. STAT. § 304.078(2) (2003-04), which provides that a

discharge certificate shall be issued when a convicted person

has satisfied his or her sentence and shall list “[civil] rights which

have been restored and which have not been restored.”

No. 04-4022 3

because of the partial restoration of his civil rights and the

terms of his discharge certificate. The district court found

no merit to this contention, denied Wilson’s motion to

dismiss, and barred him from introducing evidence of his

discharge certificate at trial.

Wilson’s arguments on appeal do not directly implicate

the facts adduced at trial, so we state them only briefly. On

May 25, 2004, approximately one year after Wilson

was released from state prison, a man was shot to death

in Janesville, Wisconsin. Officers responding to 911 calls of

“shots fired” were told to be on the lookout for a blue vehicle

with a white top and shiny rims. A witness had observed a

vehicle of this description leaving the area of the shooting

at a high rate of speed. Officers located the car within

minutes of the shooting, parked on a residential street. The

car belonged to Wilson and contained numerous boxes of

ammunition, loaded and unloaded handgun magazines,

pistol grips, and holsters.

Wilson was found inside the home where the vehicle

was parked. Witnesses inside the home testified that

when Wilson arrived there, he seemed scared and in-

formed them that he had “something he needed to hide.”

Wilson also instructed the occupants of the home to lie to

police about the ownership of the vehicle and who had been

driving it. The ammunition found in Wilson’s car was the

same make and caliber as shell casings found at the murder

scene. Urundi Allen, a friend of Wilson’s, was eventually

charged with the murder; Wilson was charged with the

crime of Harboring or Aiding a Felon. The record on appeal

does not disclose the final disposition of this state charge.

The jury convicted Wilson of the § 922(g)(1) charge, and

he renewed his motion to dismiss posttrial. The district

court again denied it. Wilson was sentenced on November

17, 2004, during the six-month interval between this court’s

decision in United States v. Booker, 375 F.3d 508 (7th Cir.

4 No. 04-4022

2004), and the Supreme Court’s decision in the same case.

United States v. Booker, 543 U.S. 220 (2005). The district

court fashioned a discretionary sentence, treating the

sentencing guidelines as advisory. The judge also specifi-

cally stated that she was taking into consideration the

purposes of sentencing as set forth in 18 U.S.C. § 3553(a).

The judge noted that the applicable guidelines range

was 130 to 162 months, but the statute under which Wilson

was convicted carried a maximum term of 120 months’

imprisonment. See 18 U.S.C. § 924(a)(2). The judge imposed

the statutory maximum sentence, concluding that Wilson

posed a “real danger” to the community based upon his

extensive criminal history that included “a history of

attacking women” and two prior felony convictions for

crimes of violence. The judge also expressed concern that

Wilson’s recent lengthy period of incarceration had not

deterred him from resuming his criminal activity upon his

release.

II. Discussion

A. Restoration of Civil Rights

Wilson first argues that the district court erred in denying

his motions to dismiss because the partial restoration of

civil rights took him out of the category of persons prohib-

ited from possessing ammunition by § 922(g)(1). We review

a district court’s denial of a motion to dismiss the indict-

ment de novo. United States v. Lee, 72 F.3d 55, 57 (7th Cir.

1996). The felon-in-possession statute criminalizes the

possession of ammunition by any person “who has been

convicted in any court of a crime punishable by imprison-

ment for a term exceeding one year.” 18 U.S.C. § 922(g)(1).

The statutory definition of a “crime punishable by imprison-

ment for a term exceeding one year” excludes certain prior

convictions that would otherwise qualify:

No. 04-4022 5

What constitutes a conviction of such a crime shall be

determined in accordance with the law of the jurisdic-

tion 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 pur-

poses of this chapter, unless such pardon, expungement,

or restoration of civil rights expressly provides that the

person may not ship, transport, possess, or receive

firearms.

18 U.S.C. § 921(a)(20) (emphasis added).

Invoking this statutory language, Wilson argues that

his felony sexual assault conviction cannot form the predi-

cate for his possession-of-ammunition conviction under

§ 922(g). He concedes that the prior conviction disables him

from possessing firearms but argues that he is not prohib-

ited from possessing ammunition because neither Wisconsin

law nor the language of his discharge certificate prohibit

him from possessing ammunition. This argument ignores

the plain language of the final clause of § 921(a)(20) and

overstates the extent to which state law is consulted for

purposes of § 922(g)(1) prosecutions.

We start with the fairly self-evident point that federal

law, without reference to the law of any other jurisdiction,

makes it a crime for a convicted felon to possess ammuni-

tion. Contrary to the assumption that runs through Wilson’s

argument, a federal prosecution for felon in possession of

ammunition under § 922(g)(1) is in no manner dependent on

whether the state in which the crime is committed has

enacted a parallel statute criminalizing the same conduct.

It is irrelevant that Wisconsin does not prohibit felons with

discharge certificates from possessing ammunition. See

Caron v. United States, 524 U.S. 308, 313 (1998) (convicted

felon may not possess rifles or shotguns under § 922(g)(1)

despite the fact that such possession was permitted to him

6 No. 04-4022

by state law); DeRoo v. United States, 223 F.3d 919, 926

(8th Cir. 2000) (“whether state law allows [the defendant]

to possess ammunition is immaterial”); United States v.

Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994) (“[T]he defen-

dant can properly be convicted for possession of ammunition

under § 922(g)(1), regardless of whether that same pos-

session is prohibited under the state’s law.”).

State law does have a role to play in the federal statutory

scheme, but that role is limited to the determination of

whether the defendant is a convicted felon. Once the felony

conviction is established, federal law prohibits the posses-

sion of either firearms or ammunition. The statute requires

that we look to the law of the jurisdiction in which the

predicate conviction was obtained to determine two proposi-

tions: (1) Has the defendant previously been convicted of a

crime punishable by imprisonment for a term exceeding one

year; and (2) if so, has the jurisdiction of conviction par-

doned the defendant, expunged his conviction, or restored

his civil rights? Caron, 524 U.S. at 313. If the answer to the

second of these questions is “yes,” the defendant’s previous

conviction is excluded as a predicate for a felon-in-posses-

sion charge “unless such pardon, expungement, or restora-

tion of civil rights expressly provides that the person may

not . . . possess . . . firearms.” 18 U.S.C. § 921(a)(20). The

“unless” clause limits the scope of the statutory exclusion

for felons whose convictions have been pardoned or ex-

punged, or for whom civil rights have been restored. If the

pardon, expungement, or restoration of rights provides that

the convicted person may not possess firearms, the convic-

tion remains a qualifying predicate for purposes of

§ 922(g)(1).

It is undisputed in this case that Wilson was convicted of

a crime punishable by more than one year in prison; that

his conviction was not pardoned, expunged, or set aside;

and that the state’s partial restoration of his civil rights

expressly provided that he could not possess firearms.

No. 04-4022 7

Wilson therefore meets the § 921(a)(20) definition of a

convicted felon and under § 922(g)(1) is prohibited from

possessing both firearms and ammunition. The district

court properly denied his dismissal motions.

B. Evidentiary Ruling

Wilson next argues that the district court should have

permitted him to introduce his discharge certificate into

evidence at trial so he could argue to the jury that he

believed he was legally permitted to possess ammunition

because the certificate only refers to a prohibition on

firearms possession. We review the district court’s eviden-

tiary rulings for abuse of discretion. United States v.

Hughes, 970 F.2d 227, 232 (7th Cir. 1992).

Wilson’s knowledge of the legality or illegality of his

conduct is irrelevant to his conviction on the felon-in-

possession charge. The mental state required for a convic-

tion under § 922(g)(1) is that the defendant “knowingly”

committed a violation of the statute. See 18 U.S.C.

§ 924(a)(2). We have held that the “knowingly” standard

in § 924 requires only that a defendant possess “the intent

to do the act that is proscribed by law,” and that the

government need not prove either a defendant’s knowl-

edge of the law or, by necessary implication, a defen-

dant’s knowledge of the illegality of his actions. United

States v. Obiechie, 38 F.3d 309, 314-15 (7th Cir. 1994);

United States v. Toney, 27 F.3d 1245, 1252 (7th Cir. 1994).

As applied to this case, the government was required to

prove only that Wilson intended to possess ammunition, not

that he knew his possession was prohibited by federal law.

Accordingly, the only evidentiary purpose to which Wilson

would have put his discharge certificate—to argue that he

believed his possession of the ammunition was legal—was

irrelevant to the issues properly before the jury. The district

court did not abuse its discretion in declining to admit the

discharge certificate at trial.

8 No. 04-4022

C. Sentencing Issues

The Presentence Investigation Report recommended a

four-point enhancement to Wilson’s base offense level

because Wilson possessed the ammunition in connection

with another felony offense, pursuant to U.S.S.G.

§ 2K2.1(b)(5). The other felony for purposes of this enhance-

ment was the state charge of Harboring or Aiding a Felon

stemming from the events surrounding the Janesville

murder. With the four-point enhancement to the base

offense level included, the resulting guidelines range was

130-162 months. Without the enhancement, the range

would have been 92-115 months. Prior to sentencing Wilson

objected to the enhancement on the ground that it had not

been submitted to the jury for resolution, citing this court’s

decision in Booker, 375 F.3d 508.2

The district court rejected Wilson’s argument, holding

that submission of the sentencing enhancement to the

jury would be required only if the court treated the sentenc-

ing guidelines as mandatory. Because the court fashioned

a discretionary sentence, consulting the guidelines range as

advisory only and giving appropriate consideration to the

sentencing factors specified in § 3553(a), Wilson’s Booker

argument fares no better on appeal. See United States v.

Julian, 427 F.3d 471, 490 (7th Cir. 2005); United States v.

Dean, 414 F.3d 725, 727 (7th Cir. 2005).

Wilson’s remaining attack on his 120-month sentence is a

patchwork of half-formed ideas. Giving the argument its

most charitable interpretation, Wilson apparently is

contending that because the district court found the

2

As previously noted, Wilson’s sentencing took place during

the six-month interval between this court’s decision in United

States v. Booker, 375 F.3d 508 (7th Cir. 2004), and the Supreme

Court’s decision in the same case. United States v. Booker, 543

U.S. 220 (2005).

No. 04-4022 9

advisory guidelines range to be 130 to 162 months, the

court necessarily adopted the PSI’s recommendation of

the four-level § 2K2.1(b)(5) enhancement, but there

was insufficient evidence before the district court to do

so. That is, Wilson asserts that the district court’s adoption

of the PSI included a factual error, and as a result

the appropriate advisory guidelines range was really 92-115

months rather than 130-162 months.

This argument was not raised in the district court, so

review is for plain error. United States v. Guy, 174 F.3d 859,

861 (7th Cir. 1999). Whether an error was committed is

controlled by the twin principles that in the aftermath of

the Supreme Court’s Booker decision, district courts remain

obligated to determine the advisory guidelines sentencing

range based upon the facts of the case and we continue to

review factual findings made by the district court for clear

error. Julian, 427 F.3d at 489-90. A factual determination

made for purposes of sentencing is clearly erroneous only if,

after considering all of the evidence, the reviewing court is

left with the definite and firm conviction that a mistake has

been made. United States v. Wyatt, 102 F.3d 241, 246 (7th

Cir. 1996).

The district court adopted the PSI recommendation in

determining that the advisory guidelines range was 130-162

months. The relevant facts recited in the PSI were that on

the day in question Wilson’s friend Urundi Allen had an

argument with a man named Lonnie Edmond. During the

argument, Allen placed a telephone call to Wilson and was

overheard telling Wilson to “put it in the trunk” and get

over to the scene of the confrontation right away. Wilson

arrived in his vehicle within five minutes, and according to

the PSI, “Wilson popped the trunk of the vehicle and Allen

retrieved a gun from the trunk.” Several minutes later

Allen used a 9mm handgun to shoot and kill Edmond. Allen

and Wilson fled in different vehicles, with Wilson winding

up at the residence discussed earlier, where he informed the

10 No. 04-4022

occupants that he needed to hide something and instructed

them to lie about the ownership of his vehicle. Following

Wilson’s arrest, officers found eight boxes of 9mm ammuni-

tion, pistol magazines, and pistol grips in his car. Three

days after the shooting, a confidential informant housed

with Wilson in the county jail told investigators that Wilson

admitted that he supplied Allen with the gun used in the

shooting and there was a gun hidden in Wilson’s car that

the police had never found. The next day the gun was

discovered in a compartment under the back seat of Wil-

son’s car.

Wilson was charged in state court with Harboring or

Aiding a Felon, contrary to section 946.47 of the Wiscon-

sin Statutes. This statute makes it a felony to, among other

things, hide evidence with the intent to prevent

the apprehension, prosecution or conviction of another

person for a felony. Based upon the facts recited in the PSI

and left unchallenged by Wilson, it was not clearly er-

roneous for the district court to have adopted the PSI’s

conclusion that Wilson’s possession of the ammunition

was accomplished in connection with another felony offense,

namely, Harboring or Aiding a Felon.

The judgment of the district court is AFFIRMED.

No. 04-4022 11

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—2-2-06