United States Court of Appeals For the First Circuit
No. 94-2026
UNITED STATES OF AMERICA,
Appellee,
v.
GERALD R. CARON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Torruella, Chief Judge, Coffin, Senior Circuit Judge,
Selya, Cyr, Boudin, Stahl, and Lynch, Circuit Judges.
Owen S. Walker, Federal Public Defender, for appellant.
Timothy Q Feeley, Assistant U.S. Attorney, Brian T. Kelly,
Assistant U.S. Attorney, Donald K. Stern, United States Attorney, for
appellee.
February 26, 1996
OPINION EN BANC
COFFIN, Senior Circuit Judge. Appellant Gerald R. Caron was
convicted of possessing rifles, shotguns and ammunition in
violation of 18 U.S.C. 922(g)(1), the "felon-in-possession"
law. Because at least three of Caron's five predicate felony
convictions were for crimes of violence, he was subject to
sentence enhancement under the Armed Career Criminal Act
("ACCA"), 18 U.S.C. 924 (e)(1). Caron received a prison term
of 21 years, 10 months, plus a five year term of supervised
release. See U.S.S.G. 4B1.4.
The issue in this case is whether three prior Massachusetts
convictions should not be counted as predicate crimes under 18
U.S.C. 921(a)(20), which excludes as predicates
[a]ny conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored . . . unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
The questions we must address relate to the words preceding
"unless," and, in particular, the procedure by which one "has had
civil rights restored." Under Massachusetts laws of general
application, two of Caron's basic civil rights were restored
automatically after a lapse of time or at the expiration of his
sentence; the remaining one was never taken away from him.
In an earlier stage of this case, United States v. Caron,
64 F.3d 713, 718 (1st Cir. 1995), a panel of this court, deeming
itself bound to follow United States v. Ramos, 961 F.2d 1003 (1st
Cir. 1992), held that the requirements of 921(a)(20) can be met
only by "focused, individualized, affirmative action," not by
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laws of general or automatic application. We subsequently
decided to reconsider this holding en banc, allowed the panel
opinion to remain in effect as to the other issues decided, and
asked for briefing on one additional issue: whether, as the
Ramos panel reasoned (regarding misdemeanors), 921(a)(20)
cannot be satisfied where civil rights are not lost as a
collateral consequence of conviction, since there is "no
individualized official judgment" evidencing the state's "renewed
trust" in the individual. Ramos, 961 F.2d at 1009.
The government, after having filed a brief urging adoption
of the panel's position, notified us that it was no longer
defining the restoration of civil rights to exclude automatic
affirmative actions based on generic statutes. It nevertheless
did not retreat from its insistence that some affirmative action
was required to "restore" such rights. And it did not withdraw
its fallback contentions that Massachusetts statutes do not fully
restore the civil rights of convicted felons and, in any event,
expressly restrict their rights to possess firearms.
Notwithstanding the government's change of position, which was
unexplained, we must arrive at our own independent judgment.
After due deliberation, we now hold, in accordance with our
seven sister circuits,1 that civil rights may be restored within
1 McGrath v. United States, 60 F.3d 1005 (2d Cir. 1995);
United States v. Hall, 20 F.3d 1066 (10th Cir. 1994); United
States v. Glaser, 14 F.3d 1213 (7th Cir. 1994); United States v.
Thomas, 991 F.2d 206 (5th Cir. 1993); United States v. Dahms, 938
F.2d 131 (9th Cir. 1991); United States v. Essick, 935 F.2d 28
(4th Cir. 1991); and United States v. Cassidy, 899 F.2d 543 (6th
Cir. 1990).
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the meaning of 921(a)(20) by laws of general application. We
also hold that, at least where some civil rights are restored by
the operation of such laws, the fact that one civil right was
never lost does not prevent an individual from having "had civil
rights restored" within the meaning of the provision.
BACKGROUND
A. Facts
We briefly set forth the relevant facts. On two occasions
in 1993, rifles, shotguns and ammunition were seized from Caron.
At the time of his arrest, his criminal record included three
Massachusetts felony convictions (1958, 1959, and 1963), a
California felony conviction (1970), and a federal firearms
felony conviction (1977). All four state convictions constituted
violent crimes which could serve as predicates under the ACCA.
See 18 U.S.C. 924(e)(2)(B).
B. Massachusetts Statutory Scheme
"Civil rights," within the meaning of 921(a)(20), have
been generally agreed to comprise the right to vote, the right to
seek and hold public office, and the right to serve on a jury.
United States v. Cassidy, 899 F.2d 543, 549 (6th Cir. 1990). As
an initial matter, therefore, we recount the relevant
Massachusetts laws corresponding to these rights.
A convicted felon in Massachusetts does not lose the right
to vote. See Mass. Gen. L. ch. 54, 86, 103B. He does,
however, lose the right to hold public office while serving his
sentence. Mass. Gen. L. ch. 279, 30. And, a felon is
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disqualified from juror service until seven years from his
conviction. Mass. Gen. L. ch. 234A, 4. However, even after
seven years, a judge can remove one from a jury panel solely on
the basis of a prior felony conviction. Mass. Gen. L. ch. 234,
8.
Clearly, the Massachusetts scheme neither provides for
"individualized, affirmative actions" nor for complete
"restoration," as the right to vote is never removed. Ramos,
therefore, on both fronts, would mandate that Caron's
Massachusetts convictions count for purposes of the ACCA. Now,
sitting en banc, we revisit the question whether we should depart
from the positions we took in Ramos.
DISCUSSION
A. Restoration of Civil Rights: Individualized Acts Only?
We approach the task of statutory interpretation with the
following guideline foremost in mind:
So long as the statutory language is reasonably definite, that language must ordinarily be regarded as conclusive (at least in the absence of an unmistakable legislative intent to the contrary).
United States v. Charles George Trucking Co., 823 F.2d 685, 688
(1st Cir. 1987) (citations omitted).
The key words of 18 U.S.C. 921(a)(20) are "expunged," "set
aside," "pardoned," and "civil rights restored." All of the
words signify a result: strike out, efface, eliminate (expunge);
dismiss, discard, annul (set aside); excuse an offense without
punishment, release an offender from punishment (pardon); bring
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back to an original state or condition (restore).2 They do not
address the means by which the results may be accomplished or,
consequently, indicate preference for any particular means.
In Ramos, our panel assumed that pardons, expungements and
restorations of rights all involved individualized official
judgments and procedures. 961 F.2d at 1010. But the wide variety
of practices adopted by states has since been pointed out. In
United States v. Glaser, 14 F.3d 1213, 1218 (7th Cir. 1994), the
court noted that "[n]either pardons nor expungements are
necessarily individualized," citing mass pardons by both
Presidents Jefferson and Carter, and federal and state laws
providing for "routine expungement" of convictions for juvenile
offenses.
In McGrath v. United States, 60 F.3d 1005, 1008 (2d Cir.
1995), the court recognized that "many states restore civil
rights to convicted felons by means of a general law stating that
all rights shall be reinstated upon the service of a sentence."
It also noted that other states authorize officials to issue
certificates of restoration after a given period of time
following sentence or parole, while a minority of states "restore
rights in piecemeal fashion," and twelve states apparently have
no provision regarding restoration of civil rights.
Perhaps even more significantly, in Dickerson v. New Banner
Inst., Inc., 460 U.S. 103 (1983), the Supreme Court recognized
2 These synonyms are substantially common to The Random
House Dictionary (2d ed. 1987), Webster's Third New International
Dictionary (1976), and The American Heritage Dictionary (1973).
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the diversity of state post-conviction actions such as
expungement. It noted that over half the states had enacted such
statutes and that they varied "in almost every particular,"
ranging from applicability only to young offenders or certain
offenses to automatic expunction, and amounted to "nothing less
than a national patchwork." Id. at 121-22. The Court reasoned
that the purpose of the federal firearms statute "would be
frustrated by a ruling that gave effect to state expunctions,"
id. at 119, and reversed a lower court ruling that had given full
effect to a state expungement following a successfully served
period of probation.3
Congressional reaction to Dickerson in large part accounted
for the crafting of 921(a)(20), which expressly allowed state
law to define a predicate conviction for purposes of the federal
firearms laws.4 See McGrath, 60 F.3d at 1009. In interpreting
921(a)(20), therefore, we take into account not only the
diversity of state approaches to the restoration of civil rights
of convicted felons but also the clearly manifested purpose of
Congress to defer to state laws, in this context, in determining
3 The firearm disabilities were imposed by 18 U.S.C. 922(g) and (h), enacted under Title IV of the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 226 (1968) (as amended by the Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1214 (1968)). In 1986, the Firearms Owners' Protection Act, Pub. L. No. 99-308, 100 Stat. 449 (1986), amended this law by, inter alia, changing 921(a)(20) to its
current form.
4 The sentence preceding the sentence at issue here provides that "[w]hat constitutes a conviction . . . shall be determined in accordance with the law of the jurisdiction in which the proceedings were held." 18 U.S.C. 921(a)(20).
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predicate convictions and the removal of firearm
disqualifications. As the Court stated in Dickerson, "[a]s in
all cases of statutory construction, our task is to interpret the
words of [the statute] in light of the purposes Congress sought
to serve." 460 U.S. at 118 (quoting Chapman v. Houston Welfare
Rights Org., 441 U.S. 600, 608 (1979)).
In light of this background, we discern no basis for reading
into the words at issue any gloss based on assumed frequency of
use or primacy of meaning. And, we hesitate to impose a
qualification upon these words absent some textual indication
that such limitation is warranted.5 Accordingly, we conclude
that the plain language of 921(a)(20) makes clear that the
restoration of civil rights need not be focused or
individualized.
5 We do not overlook a plausible reading of the last clause of 921(a)(20) ("unless such pardon . . . expressly provides that the person may not . . . possess . . . firearms"), which the panel in Ramos found supported its interpretation that
individualized action was required. 961 F.2d at 1008. But we think an interpretation consistent with a broader reading is provided by Glaser, 14 F.3d at 1218:
A person who contends that state statutes have restored all of his civil rights . . . [requires us] to examine the whole of state statutory law to determine whether the state treats him as "convicted" for the purpose of possessing firearms. When the state gives the person a formal notice of the restoration of civil rights, however, the final sentence of 921(a)(20) instructs us to look, not at the content of the state's statute books but at the contents of the document.
This interpretation jibes with the Court's instruction in Beecham
v. United States, 114 S. Ct. 1669, 1671 (1994), to focus on "the
plain meaning of the whole statute -- not of isolated sentences."
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From our present perspective, therefore, we see no need to
look into legislative history.6 See Summit Inv. and Dev. Corp.
v. Leroux, 69 F.3d 608, 610 (1st Cir. 1995) ("Plain statutory
language does not prompt recourse to countervailing legislative
history."). Nonetheless, given that we initially reached a
contrary conclusion, and to ensure that there is not "a clearly
expressed legislative intent to the contrary," Dickerson, 460
U.S. at 110 (internal quotation marks and citation omitted), we
take a brief foray into the legislative history of 921(a)(20).
Our review leads us to the conclusion that the legislative
history of the provision "'is more conflicting than the
[statutory] text is ambiguous.'" United States v. Aversa, 984
F.2d 493, 499 n.8 (1st Cir. 1993) (en banc) (quoting Wong Yang
Sung v. McGrath, 339 U.S. 33, 49 (1950)). We begin with the
statutory predecessors of 922(g)(1), 18 U.S.C. App. 1201-
1203, which proscribed, inter alia, the possession of firearms by
6 We note that the other circuits have, almost without exception, focused their analysis on the statutory language, rather than the legislative history. See Hall, 20 F.3d at 1069
("'[R]estored' . . . does not suggest that the action must be individualized."); Glaser, 14 F.3d at 1218 ("Nothing in
921(a)(20) distinguishes according to the frequency with which a state dispenses some boon."); Thomas, 991 F.2d at 213("[R]ights .
. . reinstated automatically by operation of law . . . are no less 'restored' than are such rights that have been resurrected by an 'affirmative act' of the state."); United States v. Gomez,
911 F.2d 219, 221 (9th Cir. 1990) ("If Congress intended to require an individual affirmative act of restoration by the state, Congress could have so provided."). But see Cassidy, 899
F.2d at 546 (relying on legislative history after concluding that it was not clear whether 921(a)(20) contemplated looking only at a discrete document or the whole law of a state).
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a convicted felon, id. 1202(a)(1), but exempted a person who
had "expressly been authorized by the President or such chief
executive [of a state] to . . . possess . . . a firearm." Id.
1203(2). There was no comparable pardon provision applicable to
the shipping or receipt of firearms under former 922(g)(1) and
(h)(1).
In 1981, S. 1030 was introduced, which, as revised,
contained essentially the language of the last sentence of
921(a)(20). See Cassidy, 899 F.2d at 547. A Senate Judiciary
Committee Report explained that the bill would repair the above
described inconsistency between 922 and 1202 by expanding the
pardon provision to encompass 922. See S. Rep. No. 476, 97th
Cong., 2d Sess. 18 (1982). In addition, the explicit reference
to chief executives was dropped and the exemption was expanded to
include expungements and restorations of civil rights. See id.
While such expansion might indicate a movement away from
individualized action, other excerpts provide a contrary thrust.
For instance, to demonstrate the need for the bill, the report
expressly cited to Thrall v. Wolfe, 503 F.2d 313 (7th Cir. 1974),
where the court held that a state pardon still did not permit one
to receive or purchase a firearm. See S. Rep. No. 476, at 18.
Although the report made no mention of the kind of pardon in
Thrall, it was an individualized one. The report also used the
following language to describe the last clause of 921(a)(20):
"In the event that the official granting the pardon, restoration
of rights or expungement of record does not desire it to restore
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the right to firearm ownership, this provision is rendered
inapplicable where the order or pardon expressly provides that
the person may not possess firearms." Id. (emphasis added). And
it referred to this last clause as providing "flexibility should
such a pardon or restoration be based upon considerations not
relating to fitness to own a firearm." Id. at 12. Taken
together, these extracts might indicate that individualized
actions were intended.
Nonetheless, we note that S. 49, the successor to S. 1030,
was explained by Senator Hatch as addressing the problem created
by imposing federal sanctions on persons who "have had their full
civil rights restored pursuant to State law." He added:
This [bill] will accommodate State reforms enacted since 1968 which permit dismissal of charges after a plea and successful completion of a probationary period. Since the Federal prohibition is triggered by the States' conviction, the States' law as to what disqualifies an individual from firearms use should govern.
131 Cong. Rec. S8,689 (daily ed. June 24, 1985). Both the
reference to reforms and the linking of state power to define
both the triggering conviction and the conditions of
disqualification tilt toward the inclusion of generic
restorations of rights.
It could be and has been argued that Congress, which has
held itself out as endeavoring to tighten laws against firearms
abusers, would not lightly turn over final decision power to the
states, allowing them in effect to nullify federal sanctions.
But, as the Second Circuit observed,
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The very decision to have restoration triggered by events governed by state law insured anomalous results. . . . They are the inevitable consequence of making access to the exemption depend on the differing laws and policies of the several states.
McGrath, 60 F.3d at 1009.
In summary, we discern no such clear and compelling evidence
of Congressional intent to limit restoration of civil rights to
individualized procedures and judgments as to change our
interpretation of what we deem to be unambiguous language.
Ramos' holding regarding the need for individualized action is
overruled.
B. Restoration of Rights Not Taken Away
It remains for us to decide whether civil rights never taken
away can be said to be "restored." The Ramos panel, dealing with
a person convicted of a misdemeanor, and therefore a person whose
civil rights were left untouched by Massachusetts law, concluded
that "restore" meant the giving back of what had been taken away.
It addressed the anomaly that those convicted of mere
misdemeanors could never have firearms while those convicted of
the most serious crimes could qualify, and responded that "[b]y
the affirmative act of pardon, expungement or restoration, the
state has declared its renewed trust in that person." 961 F.2d
at 1009.
In McGrath, the Second Circuit agreed, rejecting the
argument that not having suffered the loss of one's civil rights
is the "functional equivalent" of restoration, explaining, "[t]he
'restoration' of a thing never lost or diminished is a
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definitional impossibility." 60 F.3d at 1007. It discerned an
intent in the 1986 legislation to treat "a subsequent forgiveness
. . . as an acknowledgement of rehabilitation or an affirmative
gesture of goodwill that merited exemption from the firearms
bar." Id. And, as far as the probability of "anomalies" was
concerned, the court, as we have noted, deemed this as
inevitable. It concluded that only Congress or the particular
state can properly address the problem.
This reasoning, admittedly technical, is not easily
dismissed. The use of the word "restore" calls for some
affirmative act by the state. It is not cavalierly ignored. In
the instant case, however, we are not confronted with a total
absence of affirmative action, as in Ramos and McGrath. Here,
affirmative action has taken place with respect to the right to
sit on a jury (subject to some contingency) and the right to hold
public office. Only the right to vote was not taken away. The
words of 921(a)(20) literally apply: Caron is "a person [who]
. . . has had civil rights restored." In this case, therefore,
the dictates of both literalism and sense are met.
We leave till another day the question whether, when one
civil right is restored but two were never taken away, the same
answer would prevail, together with the basic question whether
the literal application of "restore" to a case where no civil
rights were taken away is so lacking in sense as to command the
same result. We acknowledge, however, that, contrary to Ramos'
holding, the "restoration" requirement does not automatically
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exclude the possibility that rights never taken away can
sometimes be viewed as rights restored. In addition, we note
that 921(a)(20) would seem to be in need of revisiting by the
Congress so that the problems that have busied the courts might
be resolved in harmony with legislative intent.
* * *
Our two holdings do not dispose of this case. There remain
other asserted issues, including whether the right to sit on a
jury has been sufficiently restored, and whether there has been
an express provision that appellant may not possess firearms. We
must leave to the district court the determination whether these
and other issues have been raised and preserved, and their
disposition on the merits.
The judgment is vacated and the matter remanded to the
district court for resentencing. As to all other issues in the
case, the original panel opinion shall remain in full force.
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