Judges: Kanne
Filed: Aug. 24, 2018
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 17-2985 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JIMMY L. THOMPSON, Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 16-cr-795 — Charles P. Kocoras, Judge. _ ARGUED APRIL 19, 2018 — DECIDED AUGUST 24, 2018 _ Before RIPPLE, MANION, and KANNE, Circuit Judges. KANNE, Circuit Judge. Jimmy Thompson was charged by indictment and pled guilty to bein
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 17-2985 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JIMMY L. THOMPSON, Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 16-cr-795 — Charles P. Kocoras, Judge. _ ARGUED APRIL 19, 2018 — DECIDED AUGUST 24, 2018 _ Before RIPPLE, MANION, and KANNE, Circuit Judges. KANNE, Circuit Judge. Jimmy Thompson was charged by indictment and pled guilty to being..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17‐2985
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
JIMMY L. THOMPSON,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16‐cr‐795 — Charles P. Kocoras, Judge.
____________________
ARGUED APRIL 19, 2018 — DECIDED AUGUST 24, 2018
____________________
Before RIPPLE, MANION, and KANNE, Circuit Judges.
KANNE, Circuit Judge. Jimmy Thompson was charged by
indictment and pled guilty to being a felon in possession of a
firearm, 18 U.S.C § 922(g)(1). He admitted he possessed the
firearm and initially conceded he was a felon based on his
prior conviction of aggravated unlawful use of a weapon
(“AUUW”), an Illinois state‐law offense. Later, however, he
moved to set aside his plea on the basis that the AUUW con‐
viction was invalid and thus, Thompson argued, he should
2 No. 17‐2985
not have been considered a felon. Indeed, this court and the
Illinois Supreme Court ruled the AUUW statute unconstitu‐
tional before Thompson was charged in this case, Moore v.
Madigan, 702 F.3d 933 (7th Cir. 2012); People v. Aguilar, 2
N.E.3d 321 (2013), though Thompson never moved to have
the conviction vacated or expunged. The district court, rely‐
ing on the Supreme Court’s decision in Lewis v. United States,
445 U.S. 55 (1980), rejected Thompson’s argument, denied his
motion, and sentenced him to sixteen months’ imprisonment.
Thompson reasserts this same argument on appeal—that
a conviction for violating a state statute later ruled unconsti‐
tutional and void ab initio cannot serve as a predicate offense
for purposes of the federal felon in possession statute. In so
doing, Thompson is asking us to overturn our decision in
United States v. Lee, 72 F.3d 55 (7th Cir. 1995). We decline to do
so.
I. ANALYSIS
Whether Thompson was properly considered a felon turns
on the interpretation of the felon in possession statute and of
controlling case law, so our review is de novo. United States v.
Miller, 883 F.3d 998, 1003 (7th Cir. 2018).
The district court’s interpretation is entirely consistent
with our decision in Lee. In that case, the defendant was
charged with being a felon in possession of a firearm based
on a prior state‐law felony conviction. 72 F.3d at 56. After Lee
was indicted but before he was tried, the state expunged his
previous conviction. Id. Like Thompson, Lee argued the gov‐
ernment could not prove that he had previously been con‐
victed of a felony because the conviction was expunged void
No. 17‐2985 3
ab initio. Id. at 58. We rejected this argument based on the Su‐
preme Court’s decision in Lewis. Lee, 72 F.3d at 58.
Today, we again reject the argument. The plain meaning
of § 922(g)(1) “is that the fact of a felony conviction imposes
[a] firearm disability until the conviction is vacated or the
felon is relieved of his disability by some affirmative action.”
Lewis, 445 U.S. at 60–61. “No exception ... is made for a person
whose outstanding felony conviction ultimately might turn
out to be invalid for any reason.” Id. at 62. From this language
it is clear that “Congress ... intended that the defendant clear
his status before obtaining a firearm.” Id. at 64. Thompson
could have filed petition in state court to have his conviction
vacated but failed to do so.
Thompson presents us with several policy‐based reasons
why this rule is, in his view, unfair. Those arguments are best
suited for the policymakers, not the courts. So far Congress
has made no change to the relevant language of its statute,
and we remain convinced that our earlier interpretation was
correct. This district court did not err in denying Thompson’s
motions to withdraw his plea and to vacate the indictment.
II. CONCLUSION
At the time that Thompson possessed the firearm, he had
been convicted of a felony, and that felony conviction had not
been expunged. Thus he violated the federal statute. The
judgment of the district court is AFFIRMED.