UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 00-4920

NICANDRO RAMIREZ-CASTILLO,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-00-129)

Submitted: May 8, 2001

Decided: May 22, 2001

Before LUTTIG and GREGORY, Circuit Judges, and
HAMILTON, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

George V. Laughrun, II, GOODMAN, CARR, NIXON,
LAUGHRUN, LEVINE & MURRAY, P.A., Charlotte, North Caro-
lina, for Appellant. Robert J. Conrad, Jr., United States Attorney, D.
Scott Broyles, Assistant United States Attorney, Charlotte, North Car-
olina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Nicandro Ramirez-Castillo appeals his conviction and sentence for
possession of a firearm after being convicted of a felony, in violation
of 18 U.S.C.A. § 922(g) (West 2000). Ramirez-Castillo moved in the
district court to dismiss the indictment, and after this motion was
denied, entered a plea of guilty, preserving his right to appeal the
denial of the motion to dismiss. Finding no error by the district court,
we affirm.

Ramirez-Castillo first argues that the district court erred in denying
his motion to dismiss the indictment. This motion was based upon the
contention that, because Ramirez-Castillo could lawfully possess the
firearms in question under North Carolina law despite his status as a
convicted felon, see N.C. Gen. Stat. § 14-415.1 (2000), prosecution
under § 922(g) was foreclosed. Ramirez-Castillo also contends that
North Carolina would have automatically restored his civil rights,
including the right to possess firearms, by the passage of time from
his most recent convictions. Ramirez-Castillo's predicate conviction,
however, occurred in California, and it is to that state's law that we
must look to determine whether Ramirez-Castillo's right to lawfully
possess firearms had been restored. See 18 U.S.C.A. § 921(a)(20);
United States v. Jones, 

, 1136 (4th Cir. 1993), aff'd sub
nom. Beecham v. United States, 

, 372 (1994).

Under California law, a convicted felon's civil rights are not auto-
matically restored. Rather, the felon must satisfy a period of rehabili-
tation after discharge from custody or parole, and petition a court for
a certificate of rehabilitation. See Cal. Penal Code §§ 4852.01,
4852.03, 4852.06 (Deering 2001); United States v. Horodner, 

, 1319 n.2 (9th Cir. 1996). Ramirez-Castillo does not contend,
nor has he presented any evidence, that his civil rights have been
restored by California. His argument that North Carolina law would

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permit his possession of a firearm in his home is without merit, for
"[w]hen civil rights have not been restored, the right to possess a fire-
arm is immaterial." United States v. King, 

, 292-93 (4th
Cir. 1997). The district court properly denied the motion to dismiss
the indictment.

Ramirez-Castillo also appeals the determination of his criminal his-
tory under the U.S. Sentencing Guidelines Manual § 4A1.2(a) (1998).
He argues that use of his 1990 California conviction for possession
with intent to sell cocaine, which served as the predicate offense for
his conviction under § 922(g), as a prior sentence for purposes of cal-
culating his criminal history, constitutes impermissible double count-
ing. We disagree. We have previously held that the Sentencing
Guidelines are to be applied as written, and that double counting is
permitted unless specifically prohibited. See United States v. Wil-
liams, 

, 206-08 (4th Cir. 1992). The Guidelines define
a previous sentence for criminal history purposes as"any sentence
previously imposed upon adjudication of guilt, . . . for conduct not
part of the instant offense." USSG § 4A1.2(a). The conduct that was
the instant offense in this case was Ramirez-Castillo's unlawful pos-
session of firearms on May 10, 2000. Ramirez-Castillo's possession
of cocaine with intent to sell in California in 1990 was conduct "not
part of the instant offense." See United States v. Alessandroni, 

, 421 (10th Cir. 1992) ("[I]t is not the conduct of committing
a prior felony that is an element of § 922(g)(1); rather, it is the status
of being a convicted felon that is an element of§ 922(g)(1)." (empha-
sis in original)). This assertion of error is without merit.

We therefore affirm Ramirez-Castillo's conviction and sentence.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the material before the court and
argument would not aid in the decisional process.

AFFIRMED

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