UNITED STATES of America, Plaintiff-Appellee, v. Daniel MOLINA, Defendant-Appellant.
No. 11-2128.
United States Court of Appeals, Tenth Circuit.
July 30, 2012.
Kenneth Del Valle, Law Office of Kenneth Del Valle, El Paso, TX, for Defendant-Appellant.
Before GORSUCH and BALDOCK, Circuit Judges, and BRORBY, Senior Circuit Judge.
ORDER AND JUDGMENT*
WADE BRORBY, Circuit Judge.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this* appeal. See
Appellant Daniel Molina pled guilty to one count of possession of firearms by a convicted felon in violation of
I. Factual and Procedural Background
On June 14, 2009, local police officers responded to a domestic violence call from a woman at Mr. Molina‘s residence in Buckhorn, New Mexico; on arrival, officers observed a black semi-automatic handgun in a shoulder holster on a table. Following Mr. Molina‘s arrest, officers obtained a search warrant for both his home and vehicle where they found a total of three firearms, including a 9mm pistol and two rifles, as well as ammunition. A background check revealed Mr. Molina possessed three prior New Mexico state felony convictions, including an April 1988 aggravated assault on a peace officer and a May 1988 escape from jail for which he received a concurrent sentence of four years and six months probation which was discharged on March 25, 1993. In September 1999, he also committed a battery offense on a school official for which he received a deferred sentence and probation of eighteen months, discharging on December 4, 2003.
Following his instant arrest, a federal grand jury issued an indictment charging Mr. Molina with possession of firearms by a convicted felon in violation of
Following the government‘s response and a hearing on the matter, the district court denied Mr. Molina‘s amended motion to dismiss. It noted that while his right to vote and serve on a jury may have been automatically restored by operation of New Mexico law, neither Mr. Molina‘s right to hold public office nor his right to possess firearms had been restored within
In rejecting Mr. Molina‘s other arguments, the district court found
Following the district court‘s denial of his amended motion to dismiss the indictment, Mr. Molina entered into a conditional guilty plea to the indictment, reserving his right to appeal the district court‘s denial of his amended motion to dismiss. Thereafter, the district court sentenced him to thirty months imprisonment followed by three years supervised release.
II. Discussion
A. Restoration of Civil Rights
Mr. Molina now appeals the district court‘s denial of his amended motion to dismiss his indictment on the same grounds raised before the district court. We begin with Mr. Molina‘s argument he legally possessed the firearms pursuant to
Turning to the applicable federal statutes,
What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. 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 such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess or receive firearms.
We have held automatic restoration of one‘s civil rights, without any affirmative act by a state, is sufficient to prevent use of a prior offense as a predicate for conviction of possession of a firearm by a felon. See United States v. Hall, 20 F.3d 1066, 1069 (10th Cir.1994). To establish full restoration of one‘s civil rights for the purposes of
These rights are conjunctive, meaning a defendant must show restoration of all of these rights for the purpose of restoring his federal firearm privileges. See Flower, 29 F.3d at 536. Thus, we have determined the first three rights must be restored before we even consider whether the state has limited the right to possess a firearm. See United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir.1994). “In other words, if the defendant has been convicted of a felony under state law and has not had his civil rights restored for that offense, then the defendant can properly be convicted for possession . . . under
In arguing his civil rights were restored to him by operation of state law, Mr. Molina relies primarily on
However, as previously indicated, in order to obtain the right to possess a firearm for the purposes of federal law, including
Concerning the right to serve on a jury, New Mexico law provides a person who meets certain qualifications, including age and citizenship requirements, may serve as a juror, unless he received a felony conviction, in which case he may qualify as a juror only if he “has successfully completed all conditions of the sentence imposed for the felony, including conditions for probation or parole.”
However, with regard to the right to hold public office, Mr. Molina fails to meet his burden. New Mexico law provides “[e]very citizen of the United States who is a legal resident of the state and is a qualified elector therein, shall be qualified to hold any elective public office except as otherwise provided in this constitution.”
The only provision by which a New Mexico felon may regain his right to seek or hold public office is by gubernatorial pardon, as provided in the state‘s constitution. See
Our decision is bolstered by the Ninth Circuit‘s decision in Valerio. See 441 F.3d at 843-44. Prior to our disposition in this case, only the Ninth Circuit had considered whether a defendant‘s civil rights were fully restored under New Mexico law for the purposes of charging and convicting him as a felon in possession under
Following Valerio, the New Mexico legislature promulgated the legislation on which we have relied, allowing a felon to sit on a jury after successful completion of his sentence and probation. See
B. Fair Notice Issue
We next address Mr. Molina‘s alternative argument
We review de novo the district court‘s interpretation of federal statutes, including
The void-for-vagueness doctrine raised by Mr. Molina “‘provides that a penal statute must define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.‘” Michel, 446 F.3d at 1135 (quoting Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983)). However, a challenge for vagueness will fail if a reasonable person would have known from the language of the statute that his or her conduct was at risk. See Maynard v. Cartwright, 486 U.S. 356, 361, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). Moreover, “[t]he Constitution does not . . . impose impossible standards of specificity, and courts should remain ever mindful that general statements of the law are not inherently incapable of giving fair and clear warning.” Sperry v. McKune, 445 F.3d 1268, 1271 (10th Cir.2006) (internal quotation marks omitted). “When considering a vagueness challenge to a penal statute, courts begin with the presumption that the statute comports with the requirements of federal due process and must be upheld unless satisfied beyond all reasonable doubt that the legislature went beyond the confines of the Constitution.” United States v. Platte, 401 F.3d 1176, 1189 (10th Cir.2005) (internal quotation marks omitted). Thus, “one to whose conduct a statute clearly applies may not successfully challenge it for vagueness.” Id. at 1190 (internal quotation marks omitted).
In turn, “[c]ourts apply the rule of lenity to resolve ambiguities in favor of a defendant when a criminal statutory term is ambiguous and cannot be clarified by the statute‘s history or structure.” United States v. Metzener, 584 F.3d 928, 935 (10th Cir.2009) (internal quotation marks omitted). We have held “[i]f a statute is ambiguous, the rule of lenity indicates that courts should interpret it in the favor of the defendant,” but the rule “applies only in cases where there is a grievous ambiguity or uncertainty in the language and structure of a provision.” Michel, 446 F.3d at 1135 (internal quotation marks omitted). In addition, the rule of lenity “does not apply if the ambiguous reading relied on is an implausible reading of the congressional purpose.” Caron, 524 U.S. at 316. The Supreme Court has explained the congressional purpose of
In this case, the penal statute under which Mr. Molina received his instant conviction is
What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. 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 such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess or receive firearms.
We have not found, nor has Mr. Molina provided, case law applying the void-for-vagueness analysis to
With regard to the specific civil rights required to be restored, it is apparent Mr. Molina‘s convictions in New Mexico initially resulted in disenfranchisement of his right to vote, serve on a jury, hold office, and bear arms. See
This conclusion is supported by the Supreme Court, which determined the statutory language of
Finally, given Mr. Molina‘s repeated claims he did not know he was in violation of the law and relied on others, we find no error in the district court treating that claim, in part, as an ignorance of the law claim. To that end, the Supreme Court has “long recognized the common maxim, familiar to all minds, that ignorance of the law will not excuse any person, either civilly or criminally.” Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, — U.S. —, 130 S.Ct. 1605, 1611, 176 L.Ed.2d 519 (2010) (internal quotation marks omitted). “The general rule that ignorance of the law . . . is no defense to criminal prosecution is deeply rooted in the American legal system.” Id. (quoting Cheek v. United States, 498 U.S. 192, 199, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991)). For these reasons, the district court did not err in failing to apply the rule of lenity or rejecting Mr. Molina‘s void-for-vagueness argument when denying his amended motion to dismiss the indictment against him.
C. Constitutionality
As a last resort, Mr. Molina asserts his instant conviction for possession of firearms violates his right to bear arms under the Second Amendment of the United States Constitution. In making this assertion, Mr. Molina continues to rely on the Supreme Court‘s holdings in Heller and McDonald for the proposition the Second Amendment protects his personal right to bear arms, as extended to the states through the Fourteenth Amendment. He acknowledges, however, the prohibition against felons possessing firearms is not affected by these decisions and admits he is relying on them solely to establish a record for future appeal.
In Heller, the Supreme Court struck down prohibitions within the District of Columbia limiting possession of handguns and firearms in a person‘s home, holding the Second Amendment provides individuals the right to possess and use a firearm for lawful purposes such as self-defense within one‘s home. See 554 U.S. at 628-29. However, it made clear the Second Amendment is not unlimited, emphasizing “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill. . . .” Id. at 626. Based on this clarification by the Court, we soundly rejected the same argument Mr. Molina presents here that Heller somehow makes
Thereafter, in McDonald, the Supreme Court extended the holding in Heller to the states under the Fourteenth Amendment, striking down a Chicago ordinance and city codes banning handguns within the city. See 130 S.Ct. at 3026, 3050. In so doing, the Court reiterated that its holding in Heller did not change the longstanding prohibition of possession of firearms by felons. Id. at 3047. Thus, it is evident neither Heller nor McDonald changes the constitutional status of
III. Conclusion
Accordingly, we AFFIRM Mr. Molina‘s conviction.
WADE BRORBY
UNITED STATES CIRCUIT JUDGE
Notes
It shall be unlawful for any person . . . who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.