United States v. Dupaquier

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 2, 1996
• Docket: 95-30068
• Status: Published

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

____________

No. 95-30068 ____________

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus

GARY AUGUST DUPAQUIER,

Defendant-Appellant,

_____________________________________________ Appeal from the United States District Court for the Middle District of Louisiana

_____________________________________________

Before HIGGINBOTHAM and DUHÉ, Circuit Judges, and SCHWARZER,* District Judge.

SCHWARZER, District Judge:

Defendant Gary Dupaquier was convicted of possession of a

firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1)

(1988), using and carrying a firearm during and in relation to a

drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) (Supp.

II 1990), and possession of an unregistered firearm in violation of

26 U.S.C. § 5861(d) (1988). He now appeals his convictions and

sentences on all three counts. We reverse Dupaquier’s count one

conviction, affirm his count two and count three convictions,

vacate his sentences and remand for resentencing.

I. FACTS AND PROCEDURAL HISTORY

* District Judge of the Northern District of California, sitting by designation. Prior to the arrest leading to the convictions challenged

here, Dupaquier was convicted in Louisiana state court of burglary

and possession of controlled substances with intent to distribute.

Based on those convictions, Dupaquier was sentenced in 1979 to a

term of five years at hard labor. In July 1980, he was discharged

from state custody.

In August 1990, Dupaquier was arrested by Louisiana

authorities and charged with possession of firearms by a convicted

felon, possession of cocaine with intent to distribute, and

possession of unregistered firearms. Pursuant to a plea bargain,

Dupaquier entered a plea of nolo contendere to the charge of

possession with intent to distribute and was sentenced to ten

years’ imprisonment at hard labor. The other charges were dropped

and Dupaguier is currently serving his ten-year sentence.

Based on the same conduct for which he was arrested in 1990 by

state authorities, Dupaquier was indicted in January 1994 by a

federal grand jury and charged with possession of a firearm in

violation of 18 U.S.C. section 922(g)(1), using and carrying a

firearm during and in relation to a drug trafficking crime in

violation of 18 U.S.C. section 924(c)(1), and possession of a

firearm in violation of 18 U.S.C. section 5861(d). According to

the indictment, all three offenses occurred on or about August 8,

1990. Following a trial, Dupaquier was convicted on all three

counts. Pursuant to Fed. R. Crim. P. 29, he filed a motion for

judgment of acquittal on counts one and two, which the court

denied. Dupaquier was then sentenced to 240 months on count one,

-2- less 51 months’ credit for time served in state prison, a

concurrent term of 36 months on count three, and a consecutive term

of 60 months on count two. He now appeals his conviction and

sentence on all counts. We have jurisdiction to hear this appeal

pursuant to 28 U.S.C. section 1291 and 18 U.S.C. section 3742(a).

II. DISCUSSION

A. Dupaquier’s Conviction Under § 922(g)(1)

Count one charged Dupaquier with violation of 18 U.S.C.

section 922(g)(1) which makes it “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 possess in or

affecting commerce, any firearm . . . .” Dupaquier challenges his

conviction on count one on the ground that he was not “convicted”

within the meaning of section 922(g)(1). Dupaquier does not deny

the fact of the predicate convictions upon which the prosecution

was based. He contends, however, that his civil rights were

restored by state law prior to his arrest in 1990; thus pursuant to

18 U.S.C. 921(a)(20) (1988), he was not a convicted felon for the

purposes of section 922(g)(1). Because the issue Dupaquier raises

is purely a question of law, our review is plenary. United States

v. Thomas, 991 F.2d 206, 209 (5th Cir.), cert. denied, 114 S. Ct.

607 (1993).

Enacted “to give federal effect to state statutes that fully

‘restore’ the civil rights of convicted felons where they are

released from prison . . . .,” section 921(a)(20) defines

conviction of a crime for purposes of section 922(g)(1). Thomas,

-3- 991 F.2d at 209. Section 921(a)(20) provides that

[w]hat constitutes a conviction of such crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction . . . for which a person has . . . had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such . . . restoration of civil rights expressly provides that the person may not . . . possess . . . firearms.

Thus, we look to Louisiana law to determine whether Dupaquier was

a convicted felon for purposes of 922(g)(1). See Beecham v. United

States, 114 S. Ct. 1669, 1671 (1994). Specifically, we look to

Louisiana law to determine whether Dupaquier’s civil rights were

restored prior to his arrest. If his rights had been restored

under Louisiana law, his conviction on count one must be reversed.

To determine whether a convicted felon’s rights were

“restored” under section 921(a)(20), this court has adopted a two-

part test: We first ask whether “the state which obtained the

underlying conviction revives essentially all civil rights of

convicted felons, whether affirmatively with individualized

certification or passively with automatic reinstatement . . . .”

Thomas, 991 F.2d at 213. If so, we “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.” Id.

Thus, we begin by asking whether Louisiana revived, either

passively or actively, essentially all of Dupaquier’s civil rights.

Article I, Section 20, of the Louisiana Constitution provides that

“[f]ull rights of citizenship shall be restored upon termination of

-4- state and federal supervision following conviction for any

offense.” Under the plain language of the Constitution, therefore,

Dupaquier’s civil rights were fully restored upon his discharge

from custody.

The district court concluded, however, and the government now

argues, that Dupaquier’s civil rights were not restored within the

meaning of section 921(a)(20) because the Louisiana legislature has

barred convicted felons who have not been pardoned from serving on

juries. See La. Code Crim. Proc. Ann. art. 401(A)(5) (West Supp.

1990) (amended 1984). In support of that argument, the district

court and the government have cited our decision in Thomas for the

proposition that state law must restore three key rights--the right

to vote, the right to hold public office, and the right to serve on

a jury--in order for a felon’s rights to be restored within the

meaning of section 921(a)(20). That, however, is a faulty reading

of Thomas.

In Thomas, we did not treat the restoration of the three key

civil rights as the sine qua non of the restoration of a felon’s

rights under section 921(a)(20). Instead, to determine whether

state law had restored all or essentially all of Thomas’ civil

rights, we first looked to whether Texas law provided a generalized

restoration of a felon’s civil rights. See Thomas, 991 F.2d at

214. Only after finding that “Texas neither actively nor passively

restores all or essentially all of the civil rights of criminals”

did we look to whether Texas restored to a felon “the three civil

rights considered key by the Ninth and Sixth Circuits--the right to

-5- vote, hold public office, and serve on a jury.” Having found that

Texas provided neither a general restoration of a felon’s civil

rights nor a restoration of the three key rights, we held that

Thomas had not had his civil rights restored within the meaning of

section 921(a)(20) and was therefore a convicted felon for purposes

of 922(g).

Consistent with our analysis in Thomas, where, as here, a

state’s constitution declares full rights of citizenship to be

restored upon a convicted felon’s release from custody, we need not

look further to determine that the restoration satisfies section

921(a)(20). That the legislature has barred felons from serving on

juries is not inconsistent with that conclusion. The exercise of

the legislature’s power to establish qualifications for jurors

cannot be read as qualifying the plain language of the state’s

constitution restoring “essentially all” of a discharged felon’s

civil rights.

Having found that the Louisiana Constitution restored

essentially all of Dupaquier’s civil rights, we go to step two and

ask whether state law nevertheless deprived Dupaquier of the right

to possess a firearm. Under La. Rev. Stat. Ann. section 14:95.1

(West 1986), it is unlawful for a convicted felon to possess a

firearm until ten years after the date of completion of his

sentence. Thus, possession of a firearm became lawful for

Dupaquier after July 14, 1990. The conduct out of which the

instant charges arose occurred on or about August 8, 1990;

Dupaquier was not at that time deprived of his right to possess a

-6- firearm.

The government notes that, at the time Dupaquier received his

certificate of discharge from state prison, Dupaquier was also

given an untitled and unsigned document, which he was required to

sign, stating that “[t]his does not constitute a full pardon and

restoration of citizenship, and this does not entitle you to buy,

receive or possess firearms.” This document of uncertain

provenance cannot, of course, qualify the restoration of

citizenship provided for in the Louisiana Constitution; nor can it

extend the time period during which Dupaquier was prohibited by

statute from possessing a firearm. Indeed, the certificate points

to no authority that would give it any legal effect. Instead, the

certificate merely provides a felon with notice that he has been

officially released from state custody and apprises him of his

then-current status under the law as we have described it. Namely,

the certificate correctly informs a felon that the certificate, or

discharge from state custody, does not itself constitute a pardon,

expungement, or restoration of civil rights. A felon’s rights are

restored by operation of the Louisiana Constitution “upon

termination of state and federal supervision,” which may in some

cases include a term of supervised release or parole to be served

after the felon has been discharged from state custody. Similarly,

the certificate correctly informs a felon that the certificate, or

discharge from state custody, does not entitle him to buy, receive

or possess firearms. Pursuant to state statute, the felon does not

regain the right to possess a firearm until ten years after the

-7- completion of his sentence. In sum, the certificate has no legal

effect, but simply provides a discharged felon with notice of his

then-current statuts under Lousiana law. Therefore, it has no

bearing on our analysis.

As we have found that the Louisiana Constitution restored

essentially all of Dupaqier’s civil rights upon completion of his

sentence on July 14, 1980, and the statutory restriction on his

right to possess firearms terminated on July 14, 1990, we hold that

Dupaquier was not a convicted felon within the meaning of sections

921(a)(20) and 922(g)(1) at the time of the alleged conduct on

August 8, 1990. His conviction on count one must therefore be

reversed.

B. The Enhancement of Dupaquier’s Sentence Under Section 924(e)

Dupaquier was sentenced under 18 U.S.C. section 924(e)(1)

(1988) (the Armed Career Criminal Act) which provides:

In the case of a person who violates section 922(g) . . . and has three previous convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be . . . imprisoned not less than fifteen years . . . .

Inasmuch as Dupaquier’s conviction under section 922(g) must be

reversed, his sentence under section 924(e) must necessarily be

vacated as well. We therefore do not reach the question whether

the three predicate convictions in Louisiana state court in 1979

were “multiple convictions arising from multiple criminal

transactions . . . [to] be treated as separate convictions [for

purposes of section 924(e)(1)] . . . .” United States v. Herbert,

-8- 860 F.2d 620, 621-22 (5th Cir 1988), cert. denied, 490 U.S. 1070

(1989), and reh’g denied, 492 U.S. 927 (1989).

C. The Validity of 18 U.S.C. §§ 922(g) and 924(c)(1) and 26 U.S.C. § 5861(d)

Dupaquier, relying on United States v. Lopez, ___ U.S. ___,

115 S. Ct. 1624 (1995), argues that his convictions on all three

counts must be reversed. In Lopez, the Supreme Court held that

18 U.S.C. section 922(q)(1)(A) (Supp. V 1993) (the Gun-Free Schools

Act) exceeded the power of Congress under the Commerce Clause of

the United States Constitution. By failing to raise this issue

below, however, Dupaquier is barred from raising it here for the

first time unless the district court committed plain error.

Fed. R. Crim. P. 52(b). Plain error, including error with respect

to purely legal questions, “is synonymous with ‘clear’ or

‘obvious’” error and, “‘[a]t a minimum,’ contemplates an error

which was ‘clear under current law’ at the time of the trial.”

United States v. Calverley, 37 F.3d 160, 162-63 (5th Cir. 1994) (en

banc) (quoting United States v. Olano, ___ US ___, 113 S. Ct. 1770,

1777 (1993)), cert. denied, 115 S. Ct. 1266 (1995). Because Lopez

was not yet decided at the time of Dupaquier’s trial and

sentencing, we cannot say that the district court committed plain

error in failing to consider the validity of these statutes under

the Commerce Clause.

We therefore reverse Dupaquier’s conviction on count one and

affirm on counts two and three. Because the sentences imposed by

the district court on the three counts were intertwined, we vacate

the sentences on counts two and three and remand for resentencing.

-9- REVERSE in part, AFFIRM in part, and VACATE and REMAND for

resentencing.

-10-