Filed: Dec. 17, 1999
Latest Update: Feb. 21, 2020
Summary: [ PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT 12/17/99 THOMAS K. KAHN No. 99-6105 CLERK _ D.C. Docket No. 98-00038-001 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus BOB GENE FOWLER a.k.a. Bobby L. Fowler, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Alabama _ (December 17, 1999) Before BLACK, Circuit Judge, GODBOLD and FAY, Senior Circuit Judges. GODBOLD, Senior C
Summary: [ PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT 12/17/99 THOMAS K. KAHN No. 99-6105 CLERK _ D.C. Docket No. 98-00038-001 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus BOB GENE FOWLER a.k.a. Bobby L. Fowler, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Alabama _ (December 17, 1999) Before BLACK, Circuit Judge, GODBOLD and FAY, Senior Circuit Judges. GODBOLD, Senior Ci..
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[ PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
_____________________ ELEVENTH CIRCUIT
12/17/99
THOMAS K. KAHN
No. 99-6105 CLERK
_____________________
D.C. Docket No. 98-00038-001
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BOB GENE FOWLER a.k.a.
Bobby L. Fowler,
Defendant-Appellant.
___________________
Appeal from the United States District Court
for the Southern District of Alabama
____________________
(December 17, 1999)
Before BLACK, Circuit Judge, GODBOLD and FAY, Senior Circuit Judges.
GODBOLD, Senior Circuit Judge:
Bob Fowler entered into a conditional plea of guilty for violating 18 U.S.C. §
922(g)(1) for being a convicted felon who is knowingly in possession of a firearm.
We must decide whether the federal law prohibiting a convicted felon from carrying
a firearm applies to a defendant convicted in Alabama state court who successfully
petitioned the Alabama Pardon and Parole Board for a complete restoration of all of
his civil and political rights when the certificate of restoration contains no limitations
on the defendant’s right to carry, possess, or purchase firearms. We previously
addressed this question in U.S. v. Swanson, 947 F.2d 914 (11th Cir. 1991), and held
that the federal prohibition does not apply. After revisiting this issue in light of the
Supreme Court’s decision in U.S. v. Caron,
524 U.S. 308,
118 S. Ct. 2007 (1998), we
find that our holding in Swanson is consistent with Caron and reverse Fowler’s
conviction.
Fowler was charged in a multiple count indictment that included a count that
he violated 18 U.S.C. § 922(g)(1) by knowingly possessing a .25 caliber
semiautomatic handgun in 1997 after having been convicted of a felony offense in
1972 for second degree burglary. Fowler moved to dismiss this count of the
indictment because he received in 1975 a “certificate granting restoration of civil and
political rights” from the Alabama State Board of Pardons and Paroles for the 1972
burglary conviction. After the district court denied his motion to dismiss the §
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922(g)(1) count, Fowler entered into a conditional guilty plea. The remaining counts
against Fowler were dismissed by the government and Fowler filed a timely notice of
appeal.
Federal law forbids a person convicted of a serious offense to possess any
firearm. 18 U.S.C.§ 922(g)(1). However, 18 U.S.C. § 921(a)(20) expressly states that
a conviction for a predicate offense will not be considered if a state exercises its right
to restore the civil rights of a person for that offense.
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.
18 U.S.C. § 921(a)(20). Therefore, a previous conviction is not a predicate
substantive offense if the offender has had his civil rights restored, "unless such . . .
restoration of civil rights expressly provides that the person may not . . . possess . . .
firearms." 18 U.S.C. § 921(a)(20).1 Aside from the “unless clause” neither the statute
nor the legislative history defines what civil and political rights must be restored to
a convicted felon in order to satisfy the § 921(a)(20) exemption.2
1
This phrase is the so-called "unless clause" interpreted by the Supreme Court
in U.S. v. Caron, 524 U.S. 308,
118 S. Ct. 2007 (1998).
2
See U.S. v. Cassidy, 849 F.2d 543, 549 (6th Cir.1990).
3
In U.S. v. Swanson, 947 F.2d 914 (11th Cir. 1991), this court addressed
whether the restoration of a felon’s civil rights by the Alabama Board of Pardons and
Paroles also restored the felon’s right to carry a firearm. Swanson held that a
manslaughter conviction could not serve as predicate offense for a crime of possessing
firearms by convicted felon because the defendant received a "Certificate Granting
Restoration of Civil and Political Rights" from the State Board of Pardons and Paroles
of Alabama prior to his arrest on § 922(g)(1) charges. Swanson analyzed Alabama
Supreme Court decisions interpreting the power of the Board of Pardons and Paroles
to restore a convicted felon’s right to own and possess firearms and concluded:
Under Alabama law, then, the Board's restoration to Swanson, without
express limitation, of "all civil and political rights" means exactly what
it says: It nullifies "any and all legal incapacities," including the right to
possess firearms. Contrary to [the government’s] contention, it is not the
case that by excepting Swanson from the class of felons under section
922(g), we relieve from federal firearms disabilities one who, for
purposes of interpreting the federal firearms statute, remains under state
firearms disabilities because of his conviction for manslaughter or
larceny. Following return of "all civil and political" rights under state
law, and absent express provision that he may not "ship, transport,
possess, or receive firearms," Swanson is under no state firearm
disability. Federal and state law are consistent.
. . . In this case, a previously convicted felon cannot be indicted under
section 922(g)(1) for possessing a firearm, not because the district court
or this court ignored congressional intent or the intent of the Alabama
legislature and the Board, but because the state restored to him all civil
rights, and the certificate restoring civil rights was not expressly limited
in the manner contemplated and provided by Congress.
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Swanson, 947 F.2d at 918-19 (discussing Alabama ex rel. Sokira v. Burr,
580 So. 2d
1340, 1341 (1991)). This court concluded that without an express provision in the
restoration certificate restricting his firearms privileges, as required by section
921(a)(20), the conviction which became the basis of his indictment is not a "crime
punishable by imprisonment for a term exceeding one year," nor is it a “conviction”
pursuant to section 922(g)(1).
Id. at 915. See also U.S. v. Kolter,
849 F.2d 541 (11th
Cir.1988) (holding that the defendant could not be convicted of the predecessor statute
to § 922(g)(1) based solely on a burglary conviction because the State Board of
Pardons and Paroles restored “all the civil and political rights Kolter had lost as a
result of the burglary offense”).
The government contends that this court’s holding in Swanson is in someway
abrogated by U.S. v. Caron, 524 U.S. 308,
118 S. Ct. 2007 (1998). In Caron a
defendant who received a certificate restoring his civil and political rights from the
Commonwealth of Massachusetts was convicted of possessing six shotguns in
violation of § 922(g). The Massachusetts law that restored his rights permitted a
convicted felon whose civil rights had been restored to possess rifles, but restricted
his right to carry handguns. The Supreme Court held that the restriction on the right
to carry handguns activated the "unless" clause of the federal statute excluding a
previous conviction as a predicate offense if the offender's civil rights had been
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restored, "unless such . . . restoration of civil rights expressly provide[d] that the
person may not . . . possess . . . firearms," even though the case involved rifles and
shotguns. 18 U.S.C.A. §§ 921(a)(20), 922(g)(1), 924(e); M.G.L.A. c. 140, §§ 121,
123, 129B, 129C, 131, 131A; c. 269, § 10.
Aside from the “unless clause,” the parties in Caron agreed Massachusetts law
restored the defendant’s civil rights and that state law permitted him to possess rifles
and shotguns but forbade him to possess handguns outside his home or business. The
Supreme Court concluded:
Either the restorations forbade possession of "firearms" and the
convictions count for all purposes, or they did not and the convictions
count not at all. The unless clause looks to the terms of the past
restorations alone and does not refer to the weapons at issue in the
present case. So if the Massachusetts convictions count for some
purposes, they count for all and bar possession of all guns.
Caron, 118 S. Ct. at 2011.
Our holding in Swanson is entirely consistent with Caron. Caron addressed the
dilemma created when a state restores some of the offender’s rights by permitting
possession of one type of firearm but prohibiting possession of another. There is no
such restriction on Fowler’s certificate restoring his civil and political rights.
Swanson directly addressed the government’s contention that § 13A-11-72(a)
Code of Alabama 1975 provides the same statutory prohibition on one form of
weapon possession as at issue in Caron. Section 13A-11-72(a) provides as follows:
6
“No person who has been convicted in this state or elsewhere of committing or
attempting to commit a crime of violence shall own a pistol or have one in his
possession or under his control.” However, unlike the Massachusetts law at issue in
Caron, Alabama law empowers the State Board of Pardons and Paroles to restore the
right of a person convicted of a crime of violence to possess a firearm. Without an
express limitation on the certificate restoring civil and political rights to Fowler, under
Alabama law the restoration of civil and political rights restores the firearm rights
limited by § 13A-11-72(a). See Swanson, 947 F.2d 916-17; Alabama ex rel Sokira
v. Burr,
580 So. 2d 1340, 1345 (Ala. 1991) ( recognizing that the restoration of “all
civil rights and political privileges necessarily nullifies all legal punishment for the
offense. In other words, if the conviction incorporates certain civil and political
disqualifications, then a pardon that specifically revives all civil and political rights
must certainly remove any and all legal incapacities.”).
Fowler was granted a certificate restoring his civil and political rights without
any reservations or prohibitions limiting his right to ship, transport, possess, or receive
firearms. In this case he cannot be convicted under § 922(g)(1) for possessing a
firearm based on his 1972 second degree burglary conviction because the state
restored to him all civil and political rights and the certificate was not expressly
limited in the manner contemplated and provided by Congress.
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We REVERSE Fowler’s conviction.
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