The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________________
No. 92-8343
_____________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HENRY DAVID THOMAS,
Defendant-Appellant.
_________________________________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________________________________
(May 11, 1993)
Before WIENER, BARKSDALE, and DEMOSS, Circuit Judges.
WIENER, Circuit Judge:
Defendant-Appellant Henry David Thomas appeals his conviction
of possession of firearms by a previously convicted felon under 18
U.S.C. § 922(g)(1). He asserts that because, under Texas law, his
prior Texas felony conviction does not bar the firearms possession
for which he was convicted in federal district court, his federal
prosecution was barred by the exceptions to § 922(g)(1) created by
18 U.S.C. § 921(a)(20), the Firearm Owners Protection Act of 1986
(FOPA).1 Disagreeing with Thomas's reasoning and finding no
reversible error, we affirm.
1
Pub. L. No. 99-308, 100 Stat. 449 (1986).
I
FACTS AND PROCEDURAL HISTORY
Thomas was originally indicted on one count of possession of
a firearm by a convicted felon under § 922(g) in October 1991.
That indictment was dismissed on Thomas's motion because his
predicate state felony conviction had been set aside under Kansas
law.2 In January 1992, Thomas was again indicted for violating §
922(g)))this time on four counts.3 The predicate state felony
conviction for this indictment was a 1959 Texas conviction for
"felony theft," a non-violent felony in Texas.
Thomas argued to the district court, and he asserts on appeal,
that the government could not properly prosecute him under § 922(g)
because he had not lost the right to possess a firearm under Texas
law as a result of his felony conviction. In Texas, possession of
a firearm by a non-violent felon is not proscribed. Only a violent
felon is prohibited from "possess[ing] a firearm away from the
premises where he [or she] lives."4 Thomas reasons that, as he is
not prohibited from possessing a firearm under Texas law, his civil
rights have been fully "restored" for the purposes of § 921(a)(20),
2
See 18 U.S.C. § 921(a)(20).
3
The guns that Thomas possessed were seized from four
sources. On August 30, 1991, Thomas sold a semi-automatic pistol
to a Drug Enforcement Officer. That sale was the only act of
possession mentioned in the 1991 indictment, and it was the basis
of the first count of the 1992 indictment. On October 7, 1991,
agents from the Bureau of Alcohol, Tobacco, and Firearms (ATF)
executed three search warrants, finding guns at Thomas's
residence, his business, and in his automobile. Those guns were
the bases of counts two, three, and four of the 1992 indictment.
4
TEX. PENAL CODE ANN. § 46.05 (West 1989).
2
and thus he is not subject to conviction under § 922(g).
The district court denied Thomas's motion to dismiss the
indictment based on that argument, and the jury convicted him on
all four counts. Thomas timely appealed.
II
ANALYSIS
In his appeal, Thomas relies on two theories. His primary
argument is that, as he was not prohibited from possessing a
firearm under Texas law, he could not and did not violate § 922(g).
He also asserts that his re-indictment under § 922(g) with four
counts))as opposed to one in the original indictment))demonstrates
prosecutorial vindictiveness, thereby violating his due process
rights. We address these arguments in inverse order.
A. Prosecutorial Vindictiveness
The original indictment was dismissed because the prior
conviction on which it was based))the Kansas conviction))had been
set aside and thus was not available as a predicate offense under
§ 922(g). Thomas states that during the plea negotiations under
the first indictment, the prosecutor had assured Thomas that if he
would plead guilty to the one count of violating § 922(g),
predicated on the Kansas felony conviction,5 the government would
not charge him with the other violations of which it had evidence.
5
We note that it is not clear from the record whether the
Kansas conviction would be an acceptable predicate offense under
§ 922(g). See our discussion below.
3
Thomas argues that because he asserted his right to be charged
properly under § 922(g), the prosecutor vindictively raised the
stakes in the second indictment. Thomas concedes that this claim
was raised for the first time on appeal. As no manifest injustice
will result from Thomas being charged additionally with federal
firearms crimes he clearly committed, we reject his vindictiveness
claim.6
B. Texas Felons with Guns
The principal thrust of Thomas's insistence that he was
wrongfully convicted under § 922(g) is that when the law of the
state that obtained the predicate felony conviction does not
proscribe possession of a firearm at the time and in the manner at
issue, federal law does not criminalize such possession. Although
this issue, which involves the interaction of states' laws with §§
921(a)(20) and 922(g)(1), has been addressed by several other
federal circuit courts, it is a matter of first impression in our
court. And, as this question is purely a legal one, our review is
plenary.
Under § 922(g)(1) it is unlawful for anyone "who has been
convicted in any court of a crime punishable for a term exceeding
6
See United States v. Lopez, 923 F.2d 47, 49 (5th
Cir.)(citing United States v. Brunson, 915 F.2d 942, 944 (5th
Cir. 1990)), cert. denied, __ U.S. __, 111 S. Ct. 2032 (1991).
Concerning the merits of Thomas's vindictiveness argument, see
United States v. Goodwin, 457 U.S. 368, 376-80 (1982);
Bordenkircher v. Hayes, 434 U.S. 357, 362 (1978); United States
v. Molina-Iguado, 894 F.2d 1452, 1453-55 (5th Cir.), cert.
denied, 498 U.S. 831 (1990).
4
one year . . . [to] possess . . . any firearm . . . which has been
shipped or transported in interstate commerce."7 As our colleagues
on the Fourth Circuit have accurately observed, however, "[t]he
clarity of [§ 922(g)(1)] is clouded by 18 U.S.C. § 921(a)(20)."8
Section 921(a)(20) was added to the Federal Gun Control Act by FOPA
in 1986 to give federal effect to state statutes that fully
"restore" the civil rights of convicted felons when they are
released from prison, or are granted a pardon, or have their
convictions expunged. In effect, FOPA gave the states' statutes
federal effect by allowing the state that obtained the conviction
to determine eligibility of the felon to possess a firearm without
violating federal law.9
Since its enactment, § 921(a)(20) has been an integral element
of the definition of "felony" or, more precisely, of the term
"crime punishable by imprisonment for a term exceeding one year"
found in § 922(g)(1). It provides:
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.10
7
18 U.S.C. § 922(g)(1) (1988 & Supp 1992).
8
United States v. Essick, 935 F.2d 28, 29 (4th Cir. 1991).
9
See United States v. Cassidy, 899 F.2d 543, 546-49 & nn.
9, 11 (6th Cir. 1990).
10
18 U.S.C.S. § 921(a)(20) (Supp. 1992)(emphasis added).
5
Thomas asserts that his civil rights have been "restored" under the
Texas Penal Code because he is not prohibited by state law from
possessing a firearm. Before addressing his claim, we shall
analyze the rulings of the other circuit courts on this matter.
1. Background
The Fourth Circuit construed state law interaction with §
921(a)(20) in United States v. Essick11 and United States v.
Etheridge.12 In Essick, that court reversed a conviction of
possession of a firearm predicated on a North Carolina conviction.
The court looked to North Carolina's prisoner release statute,
which provided that upon the unconditional discharge of an inmate
by the state department of corrections, the "rights of citizenship
[that were] forfeited, shall [be] restored," and the "agency or
court having jurisdiction over the person whose rights are restored
. . . [shall] automatically and immediately issue a certificate
evidencing the restoration of such rights."13 The Essick court held
that the mandatory issuance of the certificate and the explicit
restoration language of the statute "clearly restored the general
citizenship rights of an ex-felon, and that such restoration
included the limited right to possess firearms."14 The court held
11
935 F.2d at 30.
12
932 F.2d 318, 322 (4th Cir.), cert. denied, 112 S. Ct.
323 (1991).
13
Essick, 935 F.2d at 30 (citing and discussing N.C. GEN.
STAT. §§ 13-1, 13-2 (1986)).
14
Id. (emphasis omitted).
6
that because the government had failed to prove that Essick's right
to possess firearms under North Carolina law was limited))after
five years North Carolina felons have the unlimited right to
possess firearms))he could not be convicted under § 922(g).
By contrast, that same circuit court in Etheridge held that
Virginia's statutes had not restored the rights of a convicted
felon to possess a firearm. The court did not describe either the
state statute or any certificate issued by the state specifically
restoring the rights of released felons. We construe such silence
to indicate that no general restoration of rights statute or
certification provision existed in Virginia at the time. The
Etheridge court noted that a procedure was contained in the
Virginia Code under which a convicted felon might proceed
affirmatively to seek restoration of his right to possess a
firearm.15 That procedure was not automatic, however, and Etheridge
had not availed himself of it. For those reasons, among others,
the court held that for purposes of § 921(a)(20) his civil rights
had not been "restored" under Virginia law because his right to
carry a firearm had not been restored; thus, his conviction under
§ 922(g)(1) was not obtained in error.
In United States v. Erwin,16 the Seventh Circuit held that the
applicable provisions in Illinois did not "restore" convicted
felons' rights to possess firearms. The Illinois statutes
15
Etheridge, 932 F.2d at 322-23.
16
902 F.2d 510, 512-13 (7th Cir.), cert. denied, 498 U.S.
859 (1990).
7
contained only a negative option: Upon release from prison, a
felons' rights would be restored automatically unless a particular
authority proscribed restoration. As the state's firearms
licensing authority did not authorize the licensing of guns to
convicted felons, their rights were not in fact restored. The
Erwin court held that possession of a firearm by a felon whose
predicate conviction was obtained under Illinois law would be a
violation of § 922(g)(1).
The Sixth Circuit addressed the restoration issue in United
States v. Cassidy, and reversed the dismissal of a count under §
922(g)(1). The Cassidy court examined Ohio law, which mandated the
issuance of a "Restoration Certificate" that "restored 'the rights
and privileges forfeited by conviction; namely the right to serve
on juries and hold offices of honor, trust, or profit.'"17 Although
the certificate "was silent concerning firearms," Ohio law
specifically provided that convicted felons could not possess
firearms.18 The court analyzed which rights needed to be restored
to a convicted felon for his or her "civil rights" to be considered
restored for purposes of § 921(a)(20).19 The court found that
Cassidy's civil rights had been restored, but that he was subject
to conviction under § 922(g) "because he was expressly restricted
17
Cassidy, 899 F.2d at 544.
18
Id. at 545 n.5.
19
This is discussed more below. See infra notes 24-25 and
accompanying text.
8
under state law from possessing a firearm."20 We read Cassidy as
ruling that to be protected by § 921(a)(20) from a conviction under
§ 922(g)(1) the felon must have all of his civil rights "restored"
and not be prohibited by any provision of law of the state of
conviction from possessing a firearm as well.
Two other circuits that have addressed this issue are the
First and the Ninth. The Ninth Circuit adopted a substantial part
of the reasoning of the Sixth Circuit's Cassidy opinion; the First
Circuit has struck off in another direction. In reaching their
respective decisions, the Ninth Circuit determined that "Congress
had [unambiguously] manifested its intention,"21 and the First
Circuit "read the plain language of §§ 921(a)(20) and 922(g)(1), as
well as the legislative history."22 Despite reading the same
unambiguous material, however, the two courts reached very
different results.
In United States v. Gomez, the Ninth Circuit performed a two-
20
Cassidy, 899 F.2d at 550. As was pointed out in Erwin,
902 F.2d at 512-13, the correctness of part of the Sixth
Circuit's holding is questionable. The Cassidy court stated, by
way of a footnote, that a convicted felon who received a general
restoration of rights certificate, which was restricted by a
state law that prohibited possession of a firearm by a convicted
felon, could be prosecuted under § 922(g)(1) even though he was
not given notice of the restriction. 899 F.2d at 549 n.5.
Considering the "expressly provides" language pointed to by the
Erwin court, 902 F.2d at 513, we have lingering doubts about this
holding of the Sixth Circuit. See infra notes 36-38 and
accompanying text.
21
United States v. Gomez, 911 F.2d 219, 221 (9th Cir.
1990).
22
United States v. Ramos, 961 F.2d 1003, 1008 (1st Cir.),
cert. denied, 113 S. Ct. 364 (1992).
9
step analysis. First, it focused on which "civil rights" were
referred to in the phrase "had civil rights restored" and whether
essentially all of those civil rights had been restored to the
felon by the subject state. Finding that they had, the court then
sought to determine additionally whether "such . . . restoration of
civil rights" by the subject state "expressly provides that [a
convicted felon] may not ship, transport, possess, or receive
firearms."23
In discussing first the meaning of the words, "had civil
rights restored," the Gomez court stated:
To determine whether a convicted felon's civil
rights have been restored within the meaning of section
921(a)(20), we look to the whole of state law. In
enacting section 921(a)(20), "[t]he intent of Congress
was to give effect to state reforms with respect to the
status of an ex-convict. A narrow interpretation
requiring that we look only to the document, if any,
evidencing a restoration of rights, would frustrate the
intent of Congress."
There need not be a "full" restoration of rights.
"If Congress had intended a requirement of a complete
restoration of all rights and privileges forfeited upon
conviction, it could easily have so stated." Congress
chose not to impose such a requirement.24
To determine what group of restored rights would be less than a
"full" restoration yet constitute a sufficient restoration to meet
the requirements of § 921(a)(20), the Ninth Circuit has looked to
the Cassidy opinion. In Cassidy the Sixth Circuit had stated:
Congress intended to encompass those rights accorded to
an individual by virtue of his [or her] citizenship in a
particular state. These rights include the right to
23
18 U.S.C. § 921(a)(20).
24
911 F.2d at 220 (citations omitted)(quoting Cassidy, 899
F.2d at 548-49).
10
vote, the right to seek and hold public office and the
right to sit on a jury.25
Having thus elected to follow Cassidy, the Ninth Circuit now looks
to see whether the state of conviction of the predicate offense
restores the felon's rights to vote, to hold public office, and to
serve on a jury, to determine whether the felon's "civil rights"
have been restored.
The Gomez court therefore examined the Idaho law concerning
the rights of released prisoners. Section 18-310 of the Idaho code
expressly "restore[s] the full rights of citizenship" of released
felons. Also, the court interpreted the laws of Idaho as allowing
discharged felons to vote and serve on juries.26 This was
sufficient for the Ninth Circuit to find that Gomez's civil rights
had been restored for purposes of § 921(a)(20).
After thus determining that Gomez's civil rights had been
restored, the Ninth Circuit looked to see whether the Idaho's
restoration of rights "expressly provide[d] that the [convicted
felon] may not ship, transport, possess, or receive firearms,"27
reasoning that if it found that Idaho law placed no such
restriction on convicted felons, the felons would not be subject to
conviction under § 922(g). Finding that Idaho placed no such
25
Cassidy, 899 F.2d at 549, quoted in United States v.
Dahms, 938 F.2d 131, 133 (9th Cir. 1991). The Dahms court
interpreted Michigan prisoner release statutes and was later
disagreed with on its interpretation of them. See United States
v. Driscoll, 970 F.2d 1472, 1478-79 (6th Cir. 1992).
26
Gomez, 911 at 221.
27
18 U.S.C. § 921(a)(20).
11
restriction on convicted felons, the court held that Gomez's
conviction "must [be] overturn[ed]."28
The First Circuit read the "plain language" of § 921(a)(20)
quite differently. The defendant in United States v. Ramos29 argued
that "because as a convicted misdemeanant in Massachusetts, he
never lost any of his civil rights except, temporarily, for the
period of his probation term," his rights had been restored ipso
facto.30 The court reviewed the operation of the Massachusetts
statutes, under which the convicted misdemeanant was never stripped
of his civil rights (e.g., the rights to vote, hold public office,
be a police officer, or carry a firearm) except while actually in
custody or on probation. The court framed the issue as
whether an individual residing in a jurisdiction which
does not strip him or her of any civil rights as a
collateral consequence of conviction should be deemed, as
appellant urges, to have had his civil rights "restored"
for the purposes of § 922(a)(1) [sic], after having
served his/her sentence.
The Ramos court analyzed the word "restored" and determined
that a "restoration" of civil rights did not occur for purposes of
§ 922(g)(1) if the state merely released the prisoner. The court
concluded that, even though))in a general sense))the convict's civil
rights are "recovered" upon release from prison, to interpret that
general, passive recovery of rights as co-extensive with §
28
911 F.2d at 222.
29
961 F.2d at 1006.
30
Id. at 1007. Although Ramos's two prior convictions were
classified misdemeanors under Massachusetts law, they each
carried maximum sentences of two and a half years and thus
qualified under § 922(g)(1)'s "more than one year" definition.
12
921(a)(20)'s provision that the prisoner has not been convicted for
purposes of § 922(g)(1) if he or she has actively "had civil rights
restored," would effectively "mak[e] the exception so broad as to
swallow § 922(g) entirely."31 The Ramos court stated that "[t]he
point [of § 921(a)(20)] is not just that civil rights were never
lost, but that, following conviction, such rights were
affirmatively restored."32 As Ramos's civil rights had never been
affirmatively "restored" by the Commonwealth of Massachusetts, his
possession of a firearm violated § 922(g)(1).
The principal difference between the First Circuit's approach
in Ramos and the Ninth Circuit's approach in Gomez is that the
First Circuit flatly requires an "affirmative[] restor[ation]" of
civil rights if the defendant is to come within the ambit of §
921(a)(20)33; that court simply refuses to address the rhetorical
question "how could a jurisdiction ever 'restore' civil rights to
a felon or misdemeanant whose rights were never forfeited?"))while
the Ninth Circuit "decline[d] to accept the government's suggestion
that the federal statute only recognizes restoration by individual
affirmative act."34 We find more persuasive the Ninth Circuit's
holding that an "affirmative act" or restoration is not required by
§ 921(a)(20), agreeing that "[i]f Congress intended to require an
individual affirmative act of restoration by the state, Congress
31
Id. at 1008 n.6.
32
Id. at 1008 (emphasis added).
33
Id.
34
Gomez, 911 F.2d at 221.
13
could have so provided."35 With all due respect for the nicely
reasoned opinion in Ramos, we find ourselves unable to embrace an
interpretation that results in convicting a person under § 922(g)
who has never lost his civil rights and who is not prohibited by
the state from possessing a gun while simultaneously immunizing
from such a conviction one who was stripped of his civil rights,
including gun possession, but has subsequently had them
affirmatively "restored." We are simply unwilling to pass through
the looking glass into such a Wonderland, when, as here, we are not
absolutely forced to do so.
For purposes of the instant case, the operative words of §
921(a)(20) provide: "Any conviction . . . for which a person . .
. has had civil rights restored shall not be considered a
conviction for purposes of this chapter . . . ." We are convinced
that if, upon release from prison, the suspension of a convicted
felon's rights to, inter alia, vote, hold public office, and sit on
a jury evaporates ipso facto, simply because he or she ceases to be
in custody or on probation, such felon's civil rights have been
restored for purposes of § 921(a)(20). Simply because those rights
are reinstated automatically by operation of law, they are no less
"restored" than are such rights that have been resurrected by an
"affirmative act" of the state.
Remaining faithful to the Ninth Circuit's two-step approach,
when henceforth we find that the state which obtained the
underlying conviction revives essentially all civil rights of
35
Id.
14
convicted felons, whether affirmatively with individualized
certification or passively with automatic reinstatement, we shall
then determine whether the defendant was nevertheless expressly
deprived of the right to possess a firearm by some provision of the
restoration law or procedure of the state of the underlying
conviction. To determine whether such a state's law does or does
not "expressly provide[] that a person may not ship, transport,
possess, or receive firearms," in the case of an affirmative or
active restoration (with certificate), we shall cleave to the
reasoning of the Seventh Circuit in its Erwin opinion, for we agree
that
[i]f the state sends the felon a piece of paper [or
certificate] implying that he is no longer "convicted"
and that all civil rights have been restored, a
reservation in a corner of the state's penal code can not
be the basis of a federal prosecution. A state must tell
the felon that [firearms] are not kosher.36
In the case of passive (or automatic) restoration of civil rights,
however, we cannot disabuse ourselves of some nagging concerns with
the Seventh Circuit's reasoning. In Erwin, that court stated:
When, however, the state sends no document granting
pardon or restoring rights, there is no potential for
deception, and the question becomes whether the
particular civil right to carry guns has been restored by
law.37
The court in Erwin went on to hold that, in the case of passive
restoration of civil rights, "the language [restricting the felon's
right to possess firearms] is no less express when codified [in a
36
Erwin, 902 F.2d at 512-13.
37
Id. at 513 (citing United States v. Kolter, 849 F.2d 541
(11th Cir. 1988)).
15
different part of the state's statutes than the restoration]."38
Were such a fact situation before us today we would find this
expansive reasoning from Erwin difficult to square with that
unambiguous language of § 921(a)(20), which declares that a
conviction for which a person had civil rights restored cannot
serve as the predicate for a conviction under § 922(g) "unless such
. . . restoration of civil rights expressly provides that the
person may not ship, transport, possess, or receive firearms."39
But as this issue clearly is not precisely before us, we shall
neither accept nor reject this part of the Erwin decision,
pretermitting a holding on this facet of that opinion until the
time in the future when this court must take a position on it, one
way or the other, in order to decide the case then before it.
2. Thomas and Texas Law
Thomas insists that his civil rights were "restored" by
operation of Texas law. He argues that, as Texas does not deny
non-violent felons the right to possess firearms following release
from custody, his civil rights were restored for purposes of §
921(a)(20). We disagree. Thomas confuses the specific non-
prohibition of possession of a firearm with the general restoration
of all or essentially all civil rights. In their briefs to this
38
Id. The court reasoned that West Publishing, not the
State of Illinois, actually "codified" state laws, and that it
simply does not matter in the case of a passive restoration where
West places the statute that restricts the felon's ability to
possess a firearm.
39
18 U.S.C. § 921(a)(20) (emphasis added).
16
court, neither party discussed Texas's rules concerning a convicted
felon's right to vote, hold public office, or serve on a jury; nor
did they discuss generalized restoration of civil rights under
Texas law. Nevertheless, our independent research reveals that
Texas neither actively nor passively restores all or essentially
all of the civil rights of criminals))even non-violent felons))upon
release from jail.40 We find instead that Texas law provides for
neither the passive, automatic reinstatement of all civil rights
(as Minnesota was represented to do during the debate on the bill
that was passed as FOPA41) nor the active or affirmative revival of
such rights by issuance of a certificate of restoration of all
civil rights of convicted felons following release from custody and
completion of probation (as does North Carolina42).
We also find that Texas does not restore to any felon, whether
violent or non-violent, the three civil rights considered key by
40
The current provisions of Texas law that regulate the
information contained in the release given to departing prisoners
do not mandate any broad restoration of rights. See TEX. GOV'T
CODE ANN. § 501.016 (West 1990 & Supp. 1993). Neither did the
Texas provisions in effect when Thomas was released from prison
in 1959 contain such broad provisions. See TEX. REV. CIV. STAT.
ANN. art. 6166z1 historical note (West 1970 & Supp. 1993).
Compare N.C. GEN. STAT. §§ 13-1, 13-2 (1986), cited and discussed
in Essick, 935 F.2d at 30.
41
See Cassidy, 899 F.2d at 548-49 (quoting and discussing
the comments of Senator Durenberger, 132 Cong. Rec. S14,974
(daily ed. Oct. 3, 1986)).
42
Essick, 935 F.2d at 30; see Kolter, 849 F.2d at 541-42
(holding, inter alia, that as the Georgia board of pardons and
paroles had "unqualifiedly restored all the civil and political
rights Kolter had lost as a result of [his conviction],"
presumably under statute or by certificate, his rights had been
restored for § 921(a)(20) purposes).
17
the Ninth and Sixth Circuits))the rights to vote,43 hold public
office,44 and serve on a jury.45 For purposes of the instant
inquiry, then, Texas (and therefore Thomas) fails to meet muster
under any of the approaches of the several circuits that have
addressed the concept of restoration of civil rights as
contemplated in § 921(a)(20).
It is certainly true, as Thomas contends, that Texas does not
prohibit possession of firearms by persons convicted of non-violent
felonies. The sole prohibition of firearms possession by felons
applies only to persons convicted of violent felonies; and even
they may possess firearms within their own residences.46 It does
not follow, though, that Texas's failure to deny Thomas the right
to possess firearms is the functional equivalent of restoring his
civil rights. Such an interpretation simply runs counter to any
court-approved reading of § 921(a)(20).
That statute, as we have noted, provides that
[a]ny conviction . . . for which a person . . . has had
civil rights restored shall not be considered a
43
See TEX. ELEC. CODE ANN. §§ 11.002(4)(A), 13.001(A)(4)(A)
(SUPP. 1993).
44
See TEX. ELEC. CODE ANN. § 141.001(4) (WEST 1986).
45
See TEX. GOV'T CODE ANN. § 62.102 (West 1988).
46
The relevant part of the Texas penal code provides:
§ 46.05. Unlawful Possession of Firearm by Felon
(a) A person who has been convicted of a felony
involving an act of violence or threatened violence to
a person or property commits an offense if he possesses
a firearm away from the premises where he lives.
(b) An offense under this section is a felony of the
third degree.
TEX. PENAL CODE ANN. (West 1989).
18
conviction for purposes of this chapter, unless such . .
. restoration of civil rights expressly provides that the
person may not ship, transport, possess, or receive
firearms.47
The circumstance presented by the instant case is precisely the
opposite of the one described in the statute: In the absence of
the restoration of essentially all civil rights of the convicted
felon as defined for purposes of § 921(a)(20), the felon's isolated
right to possess a firearm is of no import whatsoever. In other
words, even though a generalized restoration of the felon's core
civil rights, such as voting, holding public office, and serving as
a juror, insulates the felon from guilt under § 922(g)(1) by virtue
of § 921(a)(20) if (but only if) the state in question does not
expressly prohibit gun possession, the converse does not follow.
The isolated right to possess firearms, in the absence of
restoration of such core civil rights as well, does not immunize
convicted felons from § 922(g) guilt. If the felon has not "had
civil rights restored," it simply does not matter what the state
law provides concerning possession of firearms. Therefore, only if
we had found that Texas did restore Thomas's civil rights would we
have needed to determine whether Texas expressly prohibited him
from possessing firearms.
We recognize that both the Gomez interpretation by the Ninth
Circuit, which (in combination with the teachings of Erwin) we
adopt today, and the Ramos interpretation by the First Circuit can
lead to anomalous results and to a considerable lack of uniformity,
47
18 U.S.C. § 921(a)(20).
19
depending on the purely fortuitous fact of which jurisdiction among
the fifty states obtained the predicate conviction under
examination. Actual or potential aberrant results, however, do not
excuse reading (or writing) anything into or out of a statute that
Congress has so consciously adopted.
We recognize also that the result produced here, by our
following of the Gomez/Erwin approach, could be seen as running
counter to some of the legislative history of FOPA. For example,
Senator Hatch, speaking in favor of FOPA, asserted that "S.49
grants authority to the jurisdiction (State) which prosecuted the
individual to determine eligibility for firearm possession after a
felony conviction or plea of guilty to a felony."48 One could
fairly argue that, given the Texas legislature's determination that
))even without having their civil rights restored))violent felons
should be allowed to possess firearms in their homes and non-
violent felons should be allowed to possess firearms without any
restrictions (unmistakably the effect of § 46.05 of the Texas Penal
Code), the federal government should not impose its own stricter
crime of felon in possession of a firearm. In writing §
48
99th Cong., 1st Sess., 131 Cong. Rec. S8,689 (daily ed.
June 24, 1985), quoted in Cassidy, 899 F.2d at 549 n.11. Justice
Scalia, continuing his attack on what he views as needless
citation to legislative history, has recently reminded the courts
that just about any interpretation of an act can be supported
with a quote from the legislative history. See Conroy v.
Aniskoff, 113 S. Ct. 1562, 1567-72 (1993)(concurring in the
judgment). We note that, though the application of our
interpretation of the statute to different states' laws will
produce anomalous results, those results could not be considered
"manifestly unintended [or] profoundly unwise." See id. at 1567
n.12 (majority opinion).
20
921(a)(20), however, Congress did not speak in terms of "if the
State allows possession of firearms by a convicted felon, we shall
not make it a crime." Rather, Congress employed the terms "civil
rights" in a manner that eschews any possibility of equating the
narrow concept of a state's non-prohibition of firearm possession
with the infinitely broader concept of restoration of civil rights.
We agree entirely with the conclusions of the Sixth and Ninth
Circuits that "civil rights," as used in § 921(a)(20), must mean
much more than simply the single, narrow right to possess a
firearm.
III
CONCLUSION
Thomas's argument))that, as Texas does not prohibit the
possession of a firearm by one convicted of a non-violent felony,
his civil rights have been "restored" for purposes of §
921(a)(20)))fails. Under our reading of FOPA, Texas neither
actively nor passively restores the civil rights of persons
convicted of such felonies merely by permitting them to possess
firearms or by not declaring their possession of firearms to be
unlawful. Thomas therefore gets no benefit from the applicable
provisions of § 921(a)(20).
Thomas's other claim))that he was vindictively prosecuted))is
raised for the first time on appeal and is tested for plain error
only. This claim is evidenced by nothing more than the bald fact
that the government increased the number of firearms counts brought
21
against him from one in the original indictment to four in the
second indictment. Thomas has presented no material evidence of
vindictiveness in connection with his re-indictment; neither has he
demonstrated that a manifest injustice would result here. Without
more, this claim also fails))there is no plain error.
For the foregoing reasons, Thomas's conviction and sentence
are
AFFIRMED.
22