UNITED STATES of America, Plaintiff-Appellee, v. Barion Lee HAIRSTON, a/k/a Big Daddy, Defendant-Appellant.
No. 08-4958
United States Court of Appeals, Fourth Circuit.
Decided: Feb. 4, 2010.
Argued: Dec. 3, 2009.
Before TRAXLER, Chief Judge, NIEMEYER, Circuit Judge, and JOHN PRESTON BAILEY, Chief United States District Judge for the Northern District of West Virginia, sitting by designation.
Affirmed by unpublished opinion. Judge BAILEY wrote the opinion, in which Chief Judge TRAXLER and Judge NIEMEYER joined.
Unpublished opinions are not binding precedent in this circuit.
BAILEY, Chief District Judge:
Barion Hairston (Hairston or defendant) pleaded guilty to being a felon in possession of a firearm, in violation of
For the first time, on appeal, Hairston challenges the district court‘s use of these prior convictions to form a basis for the
Section 4B1.4 of the sentencing guidelines imposes an enhanced sentence on anyone who is an armed career criminal as defined by
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 suсh pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
In determining whether state law provides that a defendant‘s civil rights have been restored, the Court must look “to the whole of state law.” See United States v. McLean, 904 F.2d 216, 218 (4th Cir.), cert. denied, 498 U.S. 875 (1990). We therefore must look to North Carolina law. “This inquiry requires an analysis of whether and to what extent [North Carolina] ‘restores the civil rights’ of ex-felons.” United States v. Essick, 935 F.2d 28, 30 (4th Cir.1991) (recognizing Congress’ intent to empower states with authority to determine whether ex-felons would be legally permitted under fеderal law to possess firearms); see also Firearm Owner‘s Protection Act, Pub.L. No. 99-308, 100 Stat. 449 (1986).
II.
North Carolina law restores to convicted felons some civil rights upon release from prison. See
In 1995, North Carolina amended the Fеlony Firearms Act to “replace the five-year temporary handgun disability with a permanent ban on the possession of handguns and certain other firearms by ex-felons[,]” regardless of the date of conviction. United States v. Farrow, 364 F.3d 551, 554 (4th Cir.), cert. denied, 543 U.S. 889 (2004) (emphasis added); see
Hairston contends that the district court should have applied the 1975 version of North Carolina‘s Felony Firearms Act, which was in effect on October 1, 1992 (the date five years after discharge from his final 1980s conviction). In so doing, Hairston asserts, the district court would have been forced to find: (1) that his right to possess firearms was “restored” by North Carolina law and (2) thаt pursuant to the second sentence of section 921(a)(20) his 1980s convictions do not count as predicate offenses under section 924(e).
In response, the Government argues that the 1995 version should apply. In support of this contention, the Government cites Clark, in which this Court held that “as a matter of federal law [] a state conviction for a violent felony is not excluded from consideration under § 924(e) by the provisions of § 921(a)(20) until the law of the relevant state effectively restores to the defendant the right to possess firearms.” 993 F.2d at 405 (emphasis added). Accоrding to the Government, the 1995 amendment stripped Hairston of his previously restored right to possess a firearm. Accordingly, Hairston‘s right to possess firearms was not effectively restored at the time of his 2007 arrest.
III.
The peculiar facts of this case form the basis of an issue of first impressiоn in this Circuit. This issue is two-fold: (1) May a state retroactively strip a felon of a previously restored right to possess firearms and (2) if so, does that act revive a previously negated predicate conviction for purposes of applying a sentencing enhancement undеr sections 922(g)(1) and 924(e)?5 A review of the recent case law of this Court and the courts of North Carolina illustrates that an affirmative answer to each question is the next logical step in both courts’ interpretations of the North Carolina Felony Firearms Act.
A.
With regard to the first question, it is important to conduct a brief overview of the case law addressing arguments that North Carolina‘s Felony Firearms Act is ex post facto.
In 2004, we rejected a similar argument attacking the retroactive application of the permanent ban adopted in 1995. See Farrow, 364 F.3d at 555. In Farrow, the defendant would have had his right to possess firearms restored in 1997—five years after his unconditional discharge—but for the 1995 amendment to the Felony Firearms Act replacing the five-year ban on the possession of firearms by ex-felons with a permanent ban. Id. at 554. In finding no violation of the Ex Post Facto Clause, the Court cited O‘Neal as controlling. Id. at 555. Like the five-year ban in O‘Neal, the indefinite ban was found to be “rationally connected to the state‘s legitimate interest in protecting the public.” Id.; see also State v. Johnson, 169 N.C.App. 301, 309, 610 S.E.2d 739, 745 (2005) (agreeing with the reasoning in Farrow and holding that the 1995 amendment does not violate the ex post facto clause of either the North Carolina or United States Constitutions).
In 2007, the Court of Appeals of North Carolina handled an appeal filed by Barney Britt, who had instituted a civil action against the State of North Carolina based on a claim that retroactive application of the 2004 amendment to the Felony Firearms Act was, among other things, ex post facto. See Britt v. State (Britt I), 185 N.C.App. 610, 649 S.E.2d 402 (2007). In 1979, Britt was convicted of felony possession with intent to sell and deliver a controlled substance and completed his sentence in 1982. By operation of law under the Felony Firearms Act, his civil rights, inсluding his right to possess a firearm, were restored in 1987. However, the 2004 amendment retroactively stripped this previously restored right. Id. at 404. This, Britt contended, was a violation of the ex post facto clauses of both the North Carolina and United States Constitutions. Id. at 406. In rejecting this contention, the Court of Appeals quoted O‘Neal for the proposition that “North Carolina has made clear that its intent was to enact a civil disability to protect the public from those felons whose possession of guns there was the most reason to fear, not to impose any punishment or penalty on felons.” Id. (quoting O‘Neal, 180 F.3d at 123).
In 2009, however, the Supreme Court of North Carolina reversed Britt I, finding successful an as-applied challenge to the 2004 amendment based upon North Carolina‘s equivalent to the Second Amendment right to bear arms. Britt v. State (Britt II), 363 N.C. 546, 550, 681 S.E.2d 320, 323 (2009). Specifically, the Supreme Court found the 2004 amendment unconstitutional as “an unreasonable regulatiоn, not fairly related to the preservation of public peace and safety” as applied to Britt. Id. In reaching this conclusion, the Supreme Court explained:
In particular, it is unreasonable to assert that a nonviolent citizen6 who has responsibly, safely, and legally owned and used firearms for seventeen years is in reality so dangerous that any possession at all of a firearm would pose a significant threat to public safety.
Accordingly, the Supreme Court reversed the Court of Appeals to the extent that the lower court found the 2004 amendment could be constitutionally applied to Britt. Id. In effect, the Supreme Court reversed on other grounds, i.e., Britt‘s state right to bear arms, leaving the ex post facto analysis intact. See id.
Therefore, taken together, O‘Neal, Farrow, Johnson, Britt I, and Britt II uphold as constitutional the proposition that North Carolina‘s Felony Firearms Act retroactively strips a felon of a previously restored right to possess firearms.7
B.
Next, we must take up the remaining issue: whether stripping a restored right to possess firearms effectively revives a previously negated predicate conviction for purposes of sections 922(g)(1) and 924(e). Illustrative on this issue is Melvin v. United States, 78 F.3d 327 (7th Cir.1996), a case cited in the ex post facto analysis in Britt I.
In Melvin, the defendant was convicted of felony offenses in 1974 and 1975. 78 F.3d at 328. He was released in 1977, and his firearm rights were restored in 1982.8 Id. However, in 1984, Illinois enacted a firearms statute making it illegal for felons to possess weapons regardless of their date of conviction. Id. at 329. In other words, “[t]he Illinois felon in possession law cleаrly forbids all convicted felons from possessing guns, regardless of whether they were convicted before or after 1984.” Id. at 330. In holding the defendant‘s prior convictions were predicate convictions for purposes of sections 922(g)(1) and 924(e), the Seventh Circuit explained:
Although Illinois law may have allowed Melvin to possess firearms between May 27, 1982 and July 1, 1984 (the effective date of
Ill.Rev.Stat. ch. 38 para. 24-1.1 , now codified as720 ILCS 524-1.1 ), that does not require the permanent exclusion of Melvin‘s three Illinois convictions for purposes of invoking section 924(e)‘s mandatory minimum sentences. Illinois did not allow Melvin to pоssess guns at the time of his arrest in 1998.
Like the 1984 version of the Illinois felon in possession law, the 1995 version of North Carolina‘s Felony Firearms Act clearly forbids all convicted felons from possessing guns, regardless of whether they were convicted before or after its effective date, December 1, 1995. Thus, the same logic applies: although North
IV.
Because Hairston‘s claim that his 1980s convictions should not trigger application of
AFFIRMED.