United States v. Gary Lee Wind

986 F.2d 1248, 1993 U.S. App. LEXIS 3553, 1993 WL 54674
CourtCourt of Appeals for the Eighth Circuit
DecidedMarch 4, 1993
Docket92-1331
StatusPublished
Cited by17 cases

This text of 986 F.2d 1248 (United States v. Gary Lee Wind) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Gary Lee Wind, 986 F.2d 1248, 1993 U.S. App. LEXIS 3553, 1993 WL 54674 (8th Cir. 1993).

Opinions

MeMILLIAN, Circuit Judge.

Gary Lee Wind appeals his conviction following a jury trial and the fifteen-year sentence imposed on him by the District Court for the District of Minnesota under 18 U.S.C. § 924(e)(1), for possessing a firearm in violation of 18 U.S.C. § 922(g). Wind challenges the sufficiency of the evidence and the use of his prior convictions in applying the fifteen-year mandatory minimum sentence enhancement under 18 U.S.C. § 924(e)(1). We affirm the conviction but reverse the sentence and remand for resentencing.

On April 5, 1991, a Minneapolis police officer was filling the gas tank of his squad car when he was approached by a man who appeared nervous and upset. The man told the officer something which caused the officer to call for backup and to drive about a block from the gas station. The officer saw a man who fit the description that had been given to the officer walking along carrying a small brown suitcase. The man noticed the squad car, dropped the suitcase and attempted to flee. A backup squad car had arrived and that officer stopped the man while the first officer retrieved the suitcase. A firearm, later identified as a Norinco 7.62 x 39 mm semi-automatic rifle, was found inside the suitcase. The firearm was not loaded and there was no ammunition in the suitcase. The police arrested the man, who was later identified as Wind.

Wind was charged with unlawful possession of a firearm in violation of 18 U.S.C. § 922(g). The government at trial alleged that Wind had three prior violent felony convictions for purposes of sentence enhancement under 18 U.S.C. § 924(e)(1). Wind has burglary convictions from 1985, 1987, and 1990. Burglary is considered a violent felony under 18 U.S.C. § 924(e)(2)(B)(ii). Wind was found guilty by a jury, and the district court sentenced [1250]*1250him to fifteen years in prison, the minimum mandatory sentence under 18 U.S.C. § 924(e)(1), four years supervised release and a special assessment of $50.00. The district court rejected Wind’s argument that his prior convictions for which he had had his civil rights restored could not be counted for sentence enhancement purposes because the restoration of rights did not contain an express limitation on firearms possession. The district court decided that the scope of civil rights restored did not include firearms possession because, since 1975, a state statute barred felons from possessing pistols, citing United States v. Traxel, 914 F.2d 119, 124 (8th Cir.1990), and Minn.Stat. § 624.713 subd. 1(b). This appeal followed.

Wind first argues the evidence at trial was insufficient to prove possession of the firearm and his identity. We disagree. We review the evidence together with all reasonable inferences in the light most favorable to the government, as the prevailing party. We hold there was sufficient evidence that Wind knowingly possessed a firearm. As noted by the government, Wind had actual possession of the suitcase. The rifle was inside the suitcase. Wind abandoned the suitcase and attempted to flee when the police approached him; both actions support the inference that he knew what was inside the suitcase. We also hold that there was sufficient evidence that Wind was the same Gary Lee Wind named in the 1990 judgment of conviction. Although the government presented no corroborating identification evidence, the names were the same, the date of birth on the judgment corresponded to Wind’s age and the defense presented no evidence that Wind was not the Gary Lee Wind named in the judgment of conviction. Consequently, the district court’s finding that Wind was the same Gary Lee Wind named in the 1990 judgment of conviction is not clearly erroneous.

A defendant convicted of unlawful possession in violation of 18 U.S.C. § 922(g) who has three prior violent felony convictions can be sentenced to an enhanced penalty under 18 U.S.C, § 924(e)(1), which imposes a fifteen-year minimum mandatory sentence. Title 18 U.S.C. § 924(e)(2)(B), defines “violent felony” as a “crime punishable by imprisonment for a term exceeding one year.” Section 921(a)(20) defines “conviction” according to:

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, ex-pungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

The reference to state law was added as part of the 1986 amendments to the federal firearms statutes. Before the 1986 amendments, federal law exclusively defined prior convictions for purposes of the felon-in-possession statute and determined the effect to be given a state conviction for purposes of prosecution for federal firearms violations, including the effect of any state pardon, expungement, or restoration of civil rights so far as those provisions purported to exempt a person from federal firearms statutes. See United States v. Edwards, 946 F.2d 1347, 1349 (8th Cir. 1991). However, after the 1986 amendments, state law determines what constitutes a prior state conviction for purposes of federal firearms statutes, including the effect of any state pardon, expungement or restoration of civil rights. Id. Thus, after the effective date of the 1986 amendments, if a state restores a felon’s civil rights, that person will not be subject to the federal prohibition against firearm possession nor can that conviction be used for purposes of sentence enhancement unless the state expressly excludes possession of firearms from the restoration of civil rights. See Bell v. United States, 970 F.2d 428, 429 (8th Cir.1992); United States v. Ellis, 949 F.2d 952, 953-54 (8th Cir.1991).

Minnesota’s civil rights restoration statute, Minn.Stat. § 609.165 subd. 1, is a plenary restoration of civil rights provision and is effective automatically upon expira[1251]*1251tion of a sentence—it restores the person to “all civil rights and to full citizenship, with full rights to vote and hold office, the same as if such conviction had not taken place.” However, in response to the 1986 amendments, Minnesota enacted a firearms limitation to the restoration of civil rights provision, Minn.Stat.

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Bluebook (online)
986 F.2d 1248, 1993 U.S. App. LEXIS 3553, 1993 WL 54674, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gary-lee-wind-ca8-1993.