UNITED STATES OF AMERICA, Plаintiff-Appellee, v. JAMES D. LOGAN, Defendant-Appellant.
No. 05-4722
United States Court of Appeals For the Seventh Circuit
Argued June 8, 2006—Decided July 6, 2006
Appeal from the United States District Court for the Western District of Wisconsin. No. 05-CR-088-S-01—John C. Shabaz, Judge.
EASTERBROOK, Circuit Judge. This appeal presents a single question: whether a state conviction that did not result in a deprivation of civil rights can be a predicаte offense under the Armed Career Criminal Act,
Logan contends that a conviction that did not result in the loss of the rights to vote, hold public office, and serve on juries should be treatеd the same as a conviction following which those rights were terminated but later restored. This argument has the support of United States v. Indelicato, 97 F.3d 627 (1st Cir. 1996). The district court held, however, that an offender whose civil rights have been neither diminished nor returned is not a person who “has had civil rights restored“. That conclusion, which has the support of McGrath v. United States, 60 F.3d 1005 (2d Cir. 1995), led to a 180-month sentence, the minimum for any armed career criminal.
Compelled to choose between the holding of Indelicato and that of McGrath, we take the second circuit’s part. The reason is simple. The word “restore” means to give back something that had been taken away. As McGrath remarked, “the ‘restoration’ of a thing nеver lost or diminished is a definitional impossibility.” 60 F.3d at 1007. Logan does not deny this, nor did the panel in Indelicato. That court recognized that it was going in the teeth of the statutory text but decided to do so because (a) it thought the statute silly—for why should someone whose civil rights were never taken away receive a higher federal sentence than a person who lost and then regained those rights?—and (b) no legislative history shows that Congress meant to distinguish between convicts who never lost civil rights and those who lost but regained them.
The second of these reasons is a makeweight. Statutes do not depend, for their force, on some statement in the legislative history along the lines of: “We really mean it!” See, e.g., Swain v. Pressley, 430 U.S. 372, 378-79 (1977); Harrison v. PPG Industries, Inc., 446 U.S. 578, 591-92 (1980). Today’s Supreme Court uses legislative history only to resolve ambiguities in enacted texts. Even the plainest legislative history does not justify going against an unambiguous enactment. See Arlington Central School District v. Murphy, No. 05-18 (U.S. June 26, 2006), slip op. 11-12; Exxon Mobil Corp. v. Allapattah Services, Inc., 125 S. Ct. 2611, 2625-27 (2005). (Nor does
As for Indelicato’s first reason: this is a variant on the proposition that courts read statutes to make sense rather than nonsense. Absurd possibilities are ruled out. We call Indelicato’s approach a variant of the anti-absurdity canon, however, because the first circuit did not mention it—and for good reason. The statute is not absurd as written. Its text parses; there is no linguistic garble. The canon is limited to solving problems in exposition, as opposed to the harshness that a well-written but poorly conceived statute may produce. See Jaskolski v. Daniels, 427 F.3d 456 (7th Cir. 2005). Accord, Robbins v. Chronister, 435 F.3d 1238 (10th Cir. 2006) (en banc). Otherwise judges would have entirely too much leeway to follow their own policy preferences by declaring that the legislative choice is harsh or jarring. See, e.g., Adrian Vermeule, Judging Under Uncertainty 57-59 (2006); John Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387 (2003).
The Supreme Court insists that statutes be enforced as written even when they seem mistaken or pointless—for it is exactly then that the temptation to substitute one’s judgment for thе legislature’s is strongest. See, e.g., Dodd v. United States, 545 U.S. 353 (2005) (the statute of limitations for collateral attacks on criminal convictions must be enforced as written even though time may expire before a challenge becomes possible, and even though this possibility likely resulted from legislative oversight); Chapman v. United States, 500 U.S. 453 (1991) (sentence for LSD must be based on the weight of the carrier medium as well as that of the drug, even though the carrier may be hundreds of times heavier and Congress may not have understood that LSD differs from other illegal drugs in this way). Laws are not “harsh” or “pointless” in any value-free framework; they sеem harsh or pointless by reference to a given judge’s beliefs about how things ought to work, which is why a claim of power to revise “harsh” or “pointless” laws elevates the judicial over the legislative branch and must be resisted. See Tyler v. Cain, 533 U.S. 656, 663 n.5 (2001).
Indelicato assumed that judges may correct a legislature’s mistаkes and oversights. It did not, however, identify any source of authority to do this—or for that matter explain why this statute is a botch. True enough, someone whose civil rights have not been revoked cannot have them restored. But restoration of civil rights is just one of three ways to erase a conviction from one’s record for purposes of federal law. The other two—expungement and pardon—are as available to people who never lost their rights to vote, hold office, and serve on juries, as they are to other offenders.
Sectiоn 921(a)(20) acquired its current form in 1986 as a reaction to Dickerson v. New Banner Institute, Inc., 460 U.S. 103 (1983). Dickerson held that federal rather than state law defines a “conviction” for purposes of
When Congress replaced Dickerson’s uniform federal rule with a state definition of convictiоn, it ensured that similarly situated people would be treated differently—for states vary widely in which if any civil rights a convict loses and whether these rights are restored. Some states deprive almost all convicts of these rights but restore them automatically after a set period. Sеe Caron v. United States, 524 U.S. 308, 313-14 (1998) (agreeing with appellate consensus that restoration by operation of law has the same legal effect as restoration by act of personal clemency). Others take away fewer rights and make them harder to regain. The Office of the Pardon Attorney has compiled a list of these differences that conveys the flavor, though it may be out of date. U.S. Department of Justice, Civil disabilities of convicted felons: a state-by-state survey (1996), available at http://www.usdoj.gov/pardon/forms/state_survey.pdf. Vermont, for example, permits felons not only to vote from prison (they get absentee ballots) but also to hold office, but not to serve on juries; New Hampshire permits them to serve on juries but not to vote until after release (and restoration then is automatic); other states take away all three rights (plus thе right to carry firearms) and don’t restore them except via executive clemency. Most states would call the batteries of which Logan was convicted felonies and deprive the offender of civil rights (for in most states the dividing line between misdemeanor and felony is a maximum term of one year’s imprisonment). Wisconsin ordinarily puts the dividing line lower: misdemeanor sentences can’t exceed nine months in a local jail, and any time at all in the state prison system depends on a felony conviction.
When the first circuit in Indelicato combined what it perceived as an infelicitous enactment with the absence of “We really mean it!” legislative history, it was nodding in the direction of imaginative reconstruction—the idea that a cоurt may implement what it is sure the legislature would have done (had it faced the question explicitly) rather than what the legislature actually did. The Supreme Court has anathematized that approach as democratically illegitimate, for it sets up the judiciary as the effeсtive lawmakers. See, e.g., West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83, 100-01 (1991) (calling imaginative reconstruction a “usurpation” that “profoundly mistakes [the judicial] role“); Tafflin v. Levitt, 493 U.S. 455, 461-62 (1990) (“Petitioners . . . insist that if Congress had considered the issue, it would have [adopted a particular rule]. This argument . . . is misplaced, for even if we could reliably discern whаt Congress’ intent might have been had it considered the question, we are not at liberty to so speculate“). This case illustrates the practical as well as the theoretical failings in that doctrine, for Indelicato’s guess about what Congress “would have done, had it thought” turns out to be wrong.
Section 922(g)(9) of the criminal code makes it unlawful for anyone “who has been convicted in any court of a misdemeanor crime of domestic violence” to possess a firearm that is connected with interstate commerce. This section has a definitional provision corrеsponding to
Defendants have argued that
The outlier is United States v. Wegrzyn, 305 F.3d 593 (6th Cir. 2002). Persons convicted of domestic-violence misdemeanors in Michigan lose their right to vote only while incarcerated; it is restored automatically on release. Wegrzyn, who received a suspended sentence follоwing his conviction, therefore did not lose any civil right. Without citing McGrath, Indelicato, or any of the earlier decisions under
What a federal court can do, as a uniform matter, is count all state convictions unless the state extends a measure of forgiveness. The last sentence of
AFFIRMED
A true Copy:
Teste: ________________________________
Clerk of the United States Court of Appeals for the Seventh Circuit
USCA-02-C-0072—7-6-06