438 F. App'x 191
4th Cir.2011Background
- Brady pled guilty to possession of a firearm by a felon; the district court found at least three prior violent felony/serious drug offenses (1980s convictions) making him an armed career criminal under ACCA.
- He was sentenced to 180 months’ imprisonment—the statutory minimum under ACCA and USSG § 4B1.4 (2009).
- Brady’s civil rights were restored upon his release from prison in 1990, including rights to vote, hold office, and serve on a jury under North Carolina law.
- NCFFA amendments in 1995 and 2004 retroactively restricted or prohibited firearm possession by felons, with 2004 replacing a prior civil restoration with a permanent ban on firearm possession.
- Brady argued the 2004 amendment ex post facto and retroactively negated his restored rights, thereby invalidating the 1980s convictions as ACCA predicates.
- The court held that the 2004 NCFFA amendment is not an unconstitutional ex post facto law and may be applied retroactively, keeping the 1980s convictions valid ACCA predicates.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 1980s convictions qualify as ACCA predicates | Brady contends restored civil rights negate predicates. | Government asserts predicates remain valid despite restoration. | Yes; 1980s convictions remain ACCA predicates. |
| Whether the 2004 NCFFA amendment is ex post facto as applied to Brady | Brady argues retroactive firearm ban is punitive and ex post facto. | Government argues the amendment is civil/regulatory and not punitive. | Not ex post facto; amendment not punitive. |
| Whether the indictment needed to charge ACCA or admit predicates | Brady contends lack of ACCA-specific charging and admission of predicates. | Prior convictions used to enhance need not be charged or proven beyond reasonable doubt. | Foreclosed; indictment need not reference ACCA predicates. |
Key Cases Cited
- Clark v. United States, 993 F.2d 402 (4th Cir. 1993) (predicates must be of the type referred to in § 922(g)(1))
- O’Neal v. United States, 180 F.3d 115 (4th Cir. 1999) (civil/regulatory nature of prior restrictions; ex post facto analysis)
- Essick v. United States, 935 F.2d 28 (4th Cir. 1991) (look to whole state law for restoration of civil rights)
- Farrow v. United States, 364 F.3d 551 (4th Cir. 2004) (ex post facto challenge to 1995 NCFFA amendment)
- State v. Britt, 649 S.E.2d 402 (N.C. Ct. App. 2007) (ex post facto analysis of 2004 NCFFA amendment (Britt I))
- State v. Britt, 681 S.E.2d 322 (N.C. 2009) (Britt II; reaffirmed ex post facto analysis)
- State v. Whitaker, 700 S.E.2d 215 (N.C. 2010) (amendment not punitive; supports non-punitive purpose)
- McLean v. United States, 904 F.2d 216 (4th Cir. 1990) (restoration of civil rights discussed in context of predicates)