UNITED STATES OF AMERICA, Plаintiff-Appellee, v. THOMAS VERNON PHILP, Defendant-Appellant.
No. 05-5308
United States Court of Appeals for the Sixth Circuit
Argued: January 25, 2006; Decided and Filed: August 22, 2006
06a0308p.06
SILER, SUTTON, and COOK, Circuit Judges.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206. Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 03-00013—Todd J. Cаmpbell, District Judge.
ARGUED: Samuel J. Harris, Cookeville, Tennessee, for Appellant. Philip H. Wehby, ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee, for Appellee. ON BRIEF: Samuel J. Harris, Cookeville, Tennessee, for Appellаnt. Philip H. Wehby, ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee, for Appellee.
OPINION
SILER, Circuit Judge. Defendant Thomas Philp appeals the denial of his motion to dismiss count one of his indictment charging him with being a felon-in-possеssion of a firearm in violation of
BACKGROUND
Philp was convicted in 1970 of breaking and entering of an unoccupied building in Michigan. He argues his civil rights were restored by virtue of the
(1) Except as provided in subsection (2), a person convicted of a felony shall not possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm in this state until the expiration of 3 years аfter all of the following circumstances exist:
(a) The person has paid all fines imposed for the violation.
(b) The person has served all terms of imprisonment imposed for the violаtion.
(c) The person has successfully completed all conditions of probation or parole imposed for the violation.
(2) A person convicted of a specifiеd felony shall not possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm in this state until all of the following circumstances exist:
(a) The expiration of 5 yeаrs after all of the following circumstances exist:
(i) The person has paid all fines imposed for the violation.
(ii) The person has served all terms of imprisonment imposed for the violation.
(iii) The person has successfully completed all conditions of probation or parole imposed for the violation.
(b) The person‘s right to possess, use, transport, sell, рurchase, carry, ship, receive, or distribute a firearm has been restored pursuant to section 4 of Act No. 372 of the Public Acts of 1927, being section 28.424 of the Michigan Compiled Laws.
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(6) As used in subsection (2), “specified felony” means a felony in which 1 or more of the following circumstances exist:
(i) An element of that felony is the use, attempted use, or threatened use of physicаl force against the person or property of another, or that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
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(v) The felony is burglary of an occupied dwelling or breaking and entering an occupied dwelling, or arson.
The Government argues that Philp‘s fеlony was a “specified felony” and that those convicted of the “specified felonies” must apply to have their rights restored to a Concealed Weapon Licensing Bоard in the county of their residence. See
The district court ruled that Philp‘s conviction of breaking and entering includes the element of “breaking,” Michigan law holds that the “breaking” element is satisfied by evidence of “slight force,” and, thus, his felony meets the criteria for a “specified felony.” It noted Philp‘s argument that “slight force” does not equate to “physical force” as used in the “specified felony” definition but rejeсted it on the grounds that “slight force certainly requires use of physical force,” which is “physical force” against the person or property of another contained in the “specified felony” definition. The district court concluded that Philp committed a “specified felony,” which required him to have applied for restoration of his firearm rights, which he admittedly did not dо. Thus, it denied his motion to dismiss.
ANALYSIS
We review de novo a district court‘s denial of a motion to dismiss an indictment on legal grounds. United States v. Crayton, 357 F.3d 560, 564 (6th Cir. 2004) (citations omitted). We apply state law as decided by the Michigan Supreme Court. When an issue is yet to be decided by the Michigan Supreme Court, we look to “relevant data,” including state appellate decisions. See Kingsley Assocs., Inc. v. Moll PlastiCrafters, Inc., 65 F.3d 498, 507 (6th Cir. 1995). “Relevant data include decisions of the state appellate courts, and those decisions should not be disregarded unless we are presented with persuasive data that the Michigan Supreme Court would decide otherwise.” Id. at 507.
We are aware of only two persuasive cases directly addressing what constitutes a “specified felony” under Michigan law. The Eleventh Circuit in United States v. Tait, 202 F.3d 1320, 1325 (11th Cir. 2000) (attempted larceny from a motor vehicle is not a specified felony), and the Michigan Court of Appeals in Tuggle v. Dept. of State Police, 712 N.W.2d 750, 756 (Mich. Ct. App. 2005) (breaking and entering of unoccupied dwelling is a specified felony), reach irreconcilable results.
We will accept the holding of a state intermediate appellate court with respect to state law unless we determine the highest court of the state would decide otherwisе. See Hicks v. Feiock, 485 U.S. 624, 630 n. 3 (1988). Without demonstrating that the Michigan Supreme Court would decide that breaking and entering of an unoccupied dwelling is not a specified felony, we are “not at liberty to depart from the state appellate court‘s resolution” of this issue of state law. Id. at 629. There is no evidence that the Michigan Supreme Court would decide contrary to Tuggle. “In order to determinе the Michigan law, we thus turn to the decisions of the Michigan intermediate courts,
While this appeal was pending the Michigan Court of Appeals decided Tuggle, which categorized attempted breaking and entering of an unoccupied dwelling as a “specified felоny.” 712 N.W.2d at 756.2 In facts nearly identical to the present case, Tuggle attempted to purchase a firearm in 2001 after he completed his sentence for attempted breaking and entering of an unoccupied dwelling in 1985. His application for purchase of a firearm was denied on the basis that he had committed a specified felony and did not comply with the requirеments of
The crime of breaking and entering an unoccupied dwelling unquestionably is a felony that[,] by its nature, involves substantial risk that physical force against the proрerty of another may be used in the course of committing the offense. Therefore, this Court holds that this felony is a “specified felony.”
Tuggle, 712 N.W.2d 750, 756-56. Tuggle appealed to the Michigan Court of Apрeals, which declined to negate the “physical force against the person or property of another” portion of the definition of specified felony. The court hеld that breaking and entering was a specified felony because of the plain language of the statute and the likelihood that felonies could easily fall within one or more cаtegories of the definition of specified felonies under
Philp relies on Tait where the Eleventh Circuit addressed our issue of interpreting Michigan law regarding a “specified felony” in the context of Tait‘s attempted-larceny-from-a-motor-vehicle conviction. 202 F.3d at 1325. The Tait court held that “Tait‘s civil rights were unreservedly restored to him by operation of Michigan law, and Tait was not subject to prosecution under
The government distinguishes Tait as being an analysis of аn offense for auto larceny without a “breaking.” We agree that the defendant in Tait committed a different crime so the differing elements must factor into the assessment of the appliсability of the Tait opinion. Because there is no indication that the Michigan Supreme Court would not follow Tuggle, we hold that breaking and entering of an unoccupied dwelling is a specified fеlony. Philp failed to restore his right to possess a firearm and thus illegally possessed that firearm.
AFFIRMED.