United States v. Raymond Jennings

WIDENER, Before WILKINSON and HAMILTON, Judges, Circuit Senior Judge. Circuit by published opinion. Affirmed Senior Judge majority wrote the HAMILTON opinion, Judge in which WILKINSON joined. Judge a WIDENER wrote dissenting opinion.

OPINION HAMILTON, Judge. Circuit Senior Raymond Henry Jennings (Jennings) appeals judgment by from a entered following district court his conditional guilty plea sentencing violating for § 922(g)(9). appeal, On arguments, makes several all which at- tack the district court’s refusal dismiss by grand the indictment returned jury. below, For reasons forth we set affirm. I A In Congress amended the Gun Act by provid- Control id. ing person that a convicted of a misde- meanor crime of domestic violence (MCDV) prohibited from, alia, inter ammunition. possessing a firearm or Id. § 922(g)(9). A MCDV is defined an as offense is a “misdemeanor under Fed- law,” 921(a)(33)(A)(i), eral or id. State has, element, attempted as an the use or Hare, force, ARGUED: John Herman Assis- physical use of or the threatened tant Defender, Columbia, Federal Public weapon, of a deadly by use committed a Carolina, South Appellant. for Stacey spouse, current or parent, former or Haynes, victim, Denise Assistant guardian United States person a Columbia, Carolina, Attorney, South whom victim shares a child in com- Appellee. mon, ON BRIEF: by person J. Strom Thur- a cohabitating who is or 2, 1999, Jennings pos- victim On December eohabitated with has firearm, namely, or guardian, Dreyse, sessed a “a 7.65 parent, or spouse, similarly spouse, ammunition, pistol,” situated mm the form of the victim. guardian parent, shotgun shotgun “12 shells .410 gauge (J.A. 11). federal shells.” June (a)(33)(A)(ii). Under statuto- Id. in the grand jury sitting District of South scheme, however, shall person a not ry a indictment Carolina returned one-count a convicted of to have been considered charging Jennings with a violation of 18 unless, among things: other offense MCDV (1) § 922(g)(9). and U.S.C. person “knowingly intelligently the in the to MCDV right the counsel” waived indictment, grand jury’s the Following (2) (a)(33)(B)(i)(I); case, per- § the id. Jennings to the indictment moved dismiss jury trial in the son, if to a he was entitled that, 22, August on ground on the jurisdic- the under laws of case the MCDV regard with to his March 1997 conviction “tried,” was in which the case tion MCDV CDV, they though for his civil even 921(a)(33)(B)(i)(H), “knowingly § id. had taken had been “re- away, never been right to the waived the have intelligently meaning stored” within the of 18 U.S.C. jury, guilty aby case tried [MCDV] and, therefore, 921(a)(33)(B)(ii), § he could otherwise,” id. plea prosecution an 18 subject not be to (3) 921(a)(33)(B)(i)(II)(bb); per- § § 922(g)(9) U.S.C. violation. On October offense, son, did regard to the MCDV with 11, 2000, hearing a the district court held “restored,” id. not have his motion, Jennings’ at which motion on (a)(33)(B)(ii). § 921 indictment denied. to dismiss the B 11, Near the conclusion October trial, following a bench In March court and hearing before district was convicted of criminal domes- Jennings denial of his following the district court’s (CDV) Sumter, South violence Car- tic indictment, Jennings motion to dismiss For this misde- Municipal olina Court. that he suggested to the district court offense, suspended he received meanor prosecuted under 18 U.S.C. could not be thirty Jennings days. does sentence of because, 922(g)(9) regard § to his that his 1997 CDV offense dispute March conviction, he did not March 1997 CDV the definition a MCDV set forth meets right his knowingly intelligently waive 921(a)(33)(A)(i) (ii). §§ required by 18 U.S.C. to counsel as However, Jennings was not incar- because 921(a)(33)(B)(i)(I). court al- The district cerated for his March 1997 CDV convic- motion to make an oral Jennings lowed tion, lost parties agree Jennings a written along Jennings line and filed this South none of his under Car- on Octo- motion dismiss indictment to law. Ann.Code 7-5- olina S.C. Cf ber 120(B)(2) (noting person is disquali- that a dismiss, motion On this second vote being registered from or vot- fied hearing on November district court held imprison- if “is a term of ing serving he Munici- At- hearing, Sumter resulting a conviction from ment Mary (Judge crime”). pal Judge Herbert that, Court parties agree also had Herbert) specific no testified that she had for March Jennings been incarcerated and, thus, Jennings’ conviction, recollection of case right vote CDV his civil sur- could not recall circumstances completely upon been restored would have right Jennings’ of his rounding waiver release from incarceration. his right counsel and waiver of to a jury imprisonment, his months’ he but remains free pending appeal. in March case. on bond timely trial 1997 CDV How- this ever, Judge proce- Herbert described the II employed, routinely dure that she in her twenty-one years municipal principal The first and issue raised judge, appeal a defendant’s to secure waiver of his whether a convicted of a stripped to a MCDV but never jury to counsel rights under state law Jennings subject trial. also at the is thereafter testified No- prosecution under 18 hearing. Although 922(g)(9). vember he did According Jennings, could happened not be not remember much of what be- Herbert, violating 922(g)(9) convicted of Judge fore acknowl- because, regard with to his March 1997 edged Judge Herbert advised him of CDV, conviction for his that, civil even jury a if right trial and he though they had never taken away, been opted trial, jury for a he would have the were nevertheless “restored” under 18 pick opportunity to have a jury jury 921(a)(33)(B)(ii). According Jennings, trial. he decided forego jury opt trial and for a bench Our examination of issues involv “just get trial because he wanted to out [of ing interpretation statutory begins with an get courtroom] back work.” analysis language statute. (J.A. 119).1 Big Holland v. River Corp., Minerals 181 (4th 597, Cir.1999), denied, F.3d 603 cert. 1, 2000, Jennings

On December filed a 1117, 936, 528 U.S. 120 S.Ct. 145 L.Ed.2d in which raised memorandum he another (2000). In analyzing meaning of a ground to dismiss the indictment. In the statute, we must first “determine whether memorandum, Jennings argued that he plain language issue has a and un prosecuted could not be under 18 U.S.C. ambiguous meaning.” Robinson v. Shell because, regard 922(g)(9) to his Co., 337, 340, 843, Oil 519 U.S. 117 S.Ct. conviction, March CDV did not (1997). 136 L.Ed.2d 808 Our determina knowingly and intelligently waive his “by tion of ambiguity guided is reference jury to a required by trial as 18 U.S.C. itself, language to the specific context (a)(33)(B)(i)(I)(bb). § 921 used, in which language and the 15, 2000, On December the district court broader context of the as a statute whole.” rejected Jennings’ remaining attacks to 341, Id. at 117 S.Ct. “[T]he 843. sole the validity of the Following indictment. function of the courts is to enforce [the the district ruling, Jennings court’s en- according statute] to its terms.” Caminet tered guilty a conditional plea to the 18 States, 470, 485, ti v. United 242 U.S. 922(g)(9) violation, reserving his 192, (1917). 61 L.Ed. 442 Conse appeal rejection the district court’s quently, go beyond plain we cannot of his on the attacks indictment. meaning of the statute unless there is “a 24, 2001, April On Jennings clearly filed a mo- expressed legislative intent to the reconsideration, tion for contrary,” States, was denied Russello v. United which by the 14, 16, 20, district court. 296, On November U.S. 104 S.Ct. 78 L.Ed.2d 17 2001, (1983) (internal Jennings was sentenced to quotation omitted), fifteen marks had, The record reflects that as of Municipal convictions for CDV in Sumter 1997, record, March an extensive criminal Court and one conviction CDV in for Sumter included, convictions, among which County, Magistrate’s other two South Carolina Court. it According Jennings, is absurd of the statute would sult. application a literal v. purpose, to treat those misdemeanants who never its obvious thwart Griffin Contractors, Inc., 458 U.S. harshly their than Oceanic lost civil more (1982), 8245, 78 L.Ed.2d 102 S.Ct. temporarily those misdemeanants who lost of the statute would application aor literal while incarcerated and result, absurd United States produce an in- upon them restored release from had Ass’ns, Trucking 310 U.S. American Jennings’ position carceration. is not (1940). 1059, 84 L.Ed. 60 S.Ct. support. without 921(a)(33)(B)(ii), Under Indelicato, States v. to have person not be considered shall (1st Cir.1996), pleaded the defendant of a been MCDV convicted court to as- guilty Massachusetts state expunged if has been the conviction battery with a knife and carrying sault aside, for which or is an offense set knife). (the dangerous weapon Id. at had pardoned or has been has court ultimately The state sentenced (if restored the law of one-year suspended defendant to a provides $7,500 restitution, sentence offense) rights under such an loss of civil paid. Id. Both offenses the defendant res- or pardon, expungement, the unless were misdemeanors under Massachusetts rights expressly provides toration punishable a maximum by law but state transport, may ship, not impris- years’ of two and sentence one-half receive firearms. or Id. onment. 921(a)(33)(B)(ii).2 §Id. Thereafter, possessed the defendant argu Jennings conceded at oral and was firearms ammunition indicted is plain language argument ment that his violating 922(g)(1), § the fel wise, U.S.C. as it is This concession was weak. possession statute. Because his Jennings’ rights civil were on-in obvious that and, thus, never away were crimes carried a maximum sentence never taken state noted years, As the “restored.” more than two the defendant did States, 60 F.3d McGrath v. United the of 18 not fall within U.S.C. (2d Cir.1995), ‘to the “word means ‘restore’ 921(a)(20)(B), from § which excludes (as or taken give something lost back persons § con 922(g)(l)’s purview U.S.C. ” Id. at 1007 Webster’s away).’ (quoting punishable victed of state misdemeanors Dictionary 1936 New International Third imprisonment years of two by a term of “ (1976)). And, thing of a ‘restoration’ court, In the district the defendant less. lost or diminished is definitional never 921(a)(20) applied § that argued 18 U.S.C. McGrath, 1007. 60 F.3d at impossibility.” never took him because Massachusetts never Jennings’ rights were Because he suf away rights and because impossible for those civil away, it is taken state firearms fered no restrictions on his rights to have been “restored.” rejected The district court this privileges. and, his conviction in argument, following to the Jennings’ argument boils down trial, appealed. In defendant application the literal bench assertion that delicato, F.3d at 627-28. produces absurd re- word “restored” an "(if applicable juris- analogous phrase cal law of the to the felon-in- This section statute, rights rights provides for the loss of civil possession diction restoration of civil note, offense),” 921(a)(20). an which is contained § under such 18 U.S.C. Of 921(a)(33)(B)(ii). § 921(a)(20) parentheti- in 18 U.S.C. does contain 1009). issue, by as framed the Indelicato F.3d at Noting that the trustwor court, excep was whether rationale thiness did not an indi require 921(a)(20) “protects one tion of 18 U.S.C. prece vidualized decision under its circuit Indelicato, who, never had his civil like dent, that, the court “it concluded is hard Indelicato, away at all.” taken rights why Congress to see would to distin wish acknowledged 629. The court that F.3d at guish one rights between whose civil were ordinary reading of the word ‘re “the (Indelicato) away never taken and one id., supports government,” but stored’ rights mechanically whose were taken there were rea that two different noted away and mechanically restored.” Indeli why language the literal sons cato, According 97 F.3d at 630. to the 921(a)(20) preclude inqui did not further court, drawing a distinction “cer Indelicato, First, 97 F.3d at 629. ry. tainly an create anomalous vari result explanation that “a ready court observed situations, ous such as a that why Congress might have used the exists deprive did not a misdemeanant of civil intending term ‘restored’ without to ex away but took of a felon like” the Id. Ac persons clude defendant. then restored them on statute court, to the “there is no indication cording completion prison felon’s term legislative history supervision.” period of Consequently, Id. any attention gave to the rare case the court concluded that the defendant’s someone convicted of a serious they “civil the extent that not lose one or more of the crime would never away, taken should be treated as have been used three civil ” ‘restored’ for purposes most touchstones under sec courts 921(a)(20).3 Indelicato, Second, Id. the court tion.” observed any why “it hard to find reason Con Recently, the Sixth Circuit reached a would, gress adopt have wished to the dis decision consistent with the First Circuit’s urged by now government.” tinction decision Indelicato. In United States v. Because, view, Id. the lan court’s (6th Wegrzyn, Cir.2002), 305 F.3d 593 921(a)(20) guage of 18 U.S.C. was not charged defendant was with a violation of conclusive, the court turned to the stat § 922(g)(9). 18 U.S.C. Wegrzyn, 305 F.3d legislative history purpose. ute’s In predicate The 594-95. MCDV was delicato, 97 F.3d at 629. violence, Michigan charge of domestic defendant received conducting a sentence of inquiry, After the court probation. six to twelve months’ Because purpose concluded of the statuto- “ incarcerated, ry tO' ‘a the defendant was not scheme was accommodate state’s he lost judgment particular person that a none of his civil Michigan class under law. is, despite conviction, persons prior Id. at 594-95. This district held sufficiently trustworthy possess to fire- the defendant could not prosecuted un- ” McGrath, Id. at arms.’ 630 (quoting 60 der 922(g)(9) because Hall, e.g., Several other decisions have criticized in United States v. 20 F.3d persons dicta result that (10th Cir.1994) that, convicted seri- (noting if had temporarily ous who crimes lost their civil result, (and intended this easily it "would prosecution are immune from for fire- could) been explicit”); have more arm possession, while those convicted of less- Thomas, (5th States v. justify strip- er offenses—offenses that did not Cir.1993) (characterizing this result as "Won- ping subject them of their civil —remain derland”). See, 922(g)(1) prosecution. an 18 U.S.C. vote, individuals of vi- those of domestic convicted misdemeanants in this case problem presented were not sen- who Michigan olence of that the later restoration incarceration should periods tenced never have arisen. upon firearms able also be proba- short, interplay peculiar it is the be- of their sentences completion Otherwise, statutes, tween the relevant federal punishments. tion or other legislation, would occur state and Sixth Michigan situation ... the untenable in a precedent Circuit that has resulted presumably in which an individual permits that here a stat- jus- legal conclusion offense egregious a more committed exception to swallow the intended utory nevertheless incarceration would tifying Although may a result not be jail rule. such completion of the upon be allowed— palatable many, it is far from “ab- firearm, while possess sentence —to because, being besides mandated surd” transgres- whose another misdemeanant law, gives it also effect to punish- merit such severe did not sion intent to allow states Congressional harshly at more ment would be treated input in definition of the to have punish- a more lenient conclusion of crime, gives ef- parameters of the ment. of the Michi- expressed fect to the intent F.3d at 595. Wegrzyn, 305 Ironically, the Michi- legislature. gan contended government appeal, On to sacrifice populace is now forced gan ignored court’s decision the district only be- security collective some of its controlling stat- of the plain language decision legislature’s cause of the state result.” an “absurd compelled utes at least —the impose aspect, one —in rejected Wegrzyn court Id. at 595. convicted of penalty persons to all same concluding that the dis- arguments, these state, regardless of against the offenses “effect to the gave decision trict court’s charge. the seriousness and to the by Congress crafted (footnote F.3d at 595-96 Wegrzyn, 305 criminal law.” Michigan peculiarities omitted). Wegrzyn to the According Id. at 595. the decisions reached Notwithstanding court, Wegrzyn, in Indelicato and by the courts enacting 18 [i]n decisions, circuit court other we find four 921(a)(33)(B)(ii), chose to al- Congress § McGrath, 171 F.3d v. United States the to dictate the states themselves low (8th Cir.1999), v. Han States 617 by statutory exception parameters of the (9th Cir.2000), cert. cock, F.3d 557 231 among state the differences recognizing 149 denied, U.S. rights of civil concerned with loss laws (2001), and United L.Ed.2d 500 certain offenses. upon for conviction (D.C.Cir.2002), Barnes, 295 F.3d 1354 Michigan legislature the Consequently, wheth question of persuasive on the more itself, strip even misde- by choosing to “re of the word application a literal er created right, a core civil meanants of an absurd produces stored” the frustrated facing now problem the result. Indeed, Michi- had prosecutors. federal McGrath, petitioner was convict- the lawmakers, other like almost all gan court of larce- state ed in 1961 Vermont throughout the coun- legislatures state felony in that as a a crime classified guilty ny, of try, to treat individuals chosen not sen- (misdemeanors) at 1005. He was less se- state. crimes lesser time, given sus- jail but was tenced to stripped not than felons and verely (Firearms pended years’ of three to five Protection Act sentence Owners’ (FOPA)) placed imprisonment probation. on to the Gun Control Act of law, petitioner Id. Under the did Vermont which added the of restoration civil any rights not lose of his because he 921(a)(20): incarcerated, id., and was not Vermont law to its the passage, felon-in-posses- Prior provided no mechanism for felons lost statute to all applied sion convicted fel- have them restored. rights civil ons, regardless predicate whether later, thirty years Id. at 1008. Over deprivation conviction entailed with, petitioner charged was Thus, first, rights. from the the Gun to, a pleaded violation of 18 U.S.C. guilty Act distinguish Control failed to be- McGrath, 922(g)(1). F.3d at 1005-06. felony tween those whose re- convictions petitioner appeal, The later did but sulted loss of civil and those motion, filed asserting a 28 U.S.C. rights who retained those notwithstand- that, Vermont because law had not ing conviction. The FOPA amend- stripped any rights him civil of as result exempted ment then felons to whom the conviction, larceny of his 1961 not a he was convicting jurisdiction extended a subse- person prohibited carrying from firearm gesture quent forgiveness, partial or McGrath, § 922(g)(1). under 18 U.S.C. forgiveness, pardon, means ex- F.3d at 1006. In an amended 28 U.S.C. pungement, or rights. motion, petitioner claimed that theory The doubt was no that such his counsel’s failure to raise claim at this subsequent forgiveness should be credit- plea, sentencing, appeal or on direct ed an acknowledgement of rehabilita- should in- be excused because he received gesture tion or an goodwill affirmative McGrath, effective assistance counsel. that merited exemption from fire- F.3d at 1006. district dis- court arms bar. petitioner’s petition, missed the and the McGrath, 60 F.3d at 1007. petitioner appealed. Id. Next, rejected court McGrath petitioner appeal, On argued that “ petitioner’s argument could the exemption felons who have ‘had prosecution not have intended exposure to rights should restored’ extend to fel- depend on the caprices legisla- of state ons whose civil taken never Id. at tures. 1008. After noting that away.” Id. at 1007. The court McGrath many states restore civil to convict- rejected First, argument. general stating ed felons means of a law noted that petitioner’s argument that all shall upon be reinstated incompatible the meaning of the word “ sentence, service that other states au- (The “restore.” Id. ‘restoration’ of a prison thorize officials to issue a certificate thing never lost diminished is a defini- of restoration to all some or felons after a Second, impossibility.”). tional the court period expiration certain following petitioner’s observed that arguments prison parole, minority sentence or that plain meaning avoid the of “restore” piecemeal were of states restore in unavailing. rights The court rejected the fash- petitioner’s provision ion: one in argument may that it the state code was anoma- lous for government disable felon’s to vote while treat those incar- persons cerated, separate while rights provisions suspend never lost their civil more harshly persons than those to hold who tem- office and to serve on a porarily did it ignored ap- jury during imprisonment, so because and that at parent intention the 1986 including amendment least twelve Vermont— states — cretionary grace acts of should be ex- whatsoever provisions no to have appear anomaly the court The McGrath com- tended. for the pre- not innumerable plains “this effect—if of is but one of observed exactly 921(a)(20) what produce. cise result —was will anomalies According to at 1008-09. intend.” Id. did They consequence are the inevitable court: the McGrath exemption depend to the making access passed was exemption at issue differing policies The laws and on Supreme response to a 1983 several states. defi held that the decision which Court McGrath, F.3d at 1009. under the predicate offense nition of a a matter of Act 1968 was Gun Control court also observed The McGrath v. federal, Dickerson not state law. correcting petitioner’s position, while Inst., Inc., 460 U.S. New Banner create another: anomaly, one 986, 991-92, 74 111-12, 103 S.Ct. proposal, dangerous the most Under (1983). held Dickerson L.Ed.2d 845 that elected not felons a state a convic expungement of that a state’s exempted forfeit civil would be the conviction for the nullify tion did prohibition, the federal while those from firearms applying the federal purpose of far less serious crimes convicted of 921(a)(20) express Section statute. exempted un- other states would not be feder Dickerson’s ly crafted to overrule they lucky enough were to receive less allowing a felon’s status alization of grace. an act of the benefits of crimes consti to define which state law the stat offense under predicate tute a court observed Finally, Id. McGrath ute, thereby to determine position “undercut the petitioner’s subject to persons should convicted out policy keeping federal firearms basic prosecution exempt from federal felons.” Id. of the hands of convicted possession. See United firearms Smith, pleaded guilty In the defendant Cir.1993), (4th Jones, charge of misde- in 1994 to an Iowa state Beecham v. Unit sub nom. aff 'd F.3d at 619. This assault. 171 meanor 368, [372-73], States, ed 511 U.S. un- definition of a MCDV offense met the (1994). 1669, 1672, L.Ed.2d 383 (a)(33)(A)(i) (ii). §§ der 18 U.S.C. legislation the “Firearms Calling its new 621. None of the 171 F.3d at Act,” Congress Protection Owners’ stripped away defendant’s judg a state’s sought to accommodate law, because, a misdemeanant under Iowa person or class particular ment that a upon convic- conviction, is, does not lose prior despite persons at 623. if incarcerated. Id. tion even he is trustworthy fire sufficiently a firearm possessed the defendant arms. charged violating and was have restoration very decision to The Smith, 171 F.3d at 619. He 922(g)(9). by state governed events triggered guilty to the 18 conditionally pleaded anomalous results. law insured and, appeal, charge, on 922(g)(9) considerably differ- have several states fit within that he should argued pardon, expunge- governing laws ent of 18 U.S.C. exception restoration ment, and restoration of and forfeiture 921(a)(33)(B)(ii) the end result § because Furthermore, have states rights. possessed still the same—-he was policies as to when drastically different them he had regardless of whether circumstances such dis- and under what 272 them in pungement, or he never lost the and restoration

restored first Smith, 619, rights. only at This was true not when place. 171 F.3d 623. 921(a)(20), § Congress enacted even but rejecting argument, the defendant’s 921(a)(33) § it in more so when enacted court Indelicato distinguished the on the after years enacting ten much the 18 it involved U.S.C. basis criticized in exception restoration 921(a)(20) § not 18 U.S.C. 921(a)(20). McGrath, § at See 60 F.3d Smith, 921(a)(33)(B)(ii). 171 § F.3d at (noting 1009 various courts that have court, According to the 18 U.S.C. 623. disparate criticized the treatment involv- 921(a)(33)(B)(ii)’sparenthetical § language ing exception the restoration “(if the law of the 921(a)(20) § divergent based on state civil rights for the loss of provides under laws). Yet, Congress look continued to offense),” an is not such contained in to state define law to the restoration 921(a)(20), precluded § ap 18 U.S.C. exception, noting that in exception plication Indelicato. F.3d at 921(a)(33) § was modeled after con- words, In other because Iowa law did 921(a)(20). §in Cong. tained See 142 provide not the loss for a S11872-01, Rec. *811877. misdemeanant, could not the defendant fall cognizant of disparity exception within the restoration of 18 (“Loss it would See create. id. of these 921(a)(33)(B)(ii). Smith, rights generally [civil] does not flow 623; v. Keeney, F.3d cf. conviction, from a misdemeanor and so Cir.) (8th (“Thus, probably is language irrelevant must his or defendant have lost her civil most, all, if those offenders cov- pursuant to state statute order to ban.”) (state- ered because the new exception [of assert However, ment Lautenberg). of Sen. 921(a)(33)(B)(ii) applicable.”), ] Congress was concerned with domestic denied, cert. U.S. abuse who offenders were successful (2001). L.Ed.2d Additionally, pleading felony charge down to a mis- that, court noted the statute in read demeanor and thus effect escaping the defendant, manner stressed “would of the felon-in-possession See statutes. be to vitiate the because statute most mis id. at An S11876. earlier version of the demeanor not result in convictions do attempted phys- bill did not cover use of thus, of civil rights”; loss “almost all mis- weapon. ical force or threatened use of a exception demeanants would fit within See change id. at SI1877. The reflects exception would swallow the rule.” Congress’s concern that an individual Smith, 171 F.3d at 624. relationship a domestic at- The defendant also argued Smith tempt physical to use force or threaten that, literally because he did not fall within use of a weapon dangerous was as the restoration actually one who committed an act of 921(a)(33)(B)(ii), Fifth Amendment physical similarly force and should not equal protection was violated. allowed to id. firearm. See Smith, 171 F.3d at reject- Congress was concerned with the exact argument, relying ed this on McGrath and preventing situation faced here: legislative history of 18 U.S.C. (from known fact of the misdemean- 921(a)(33)(B)(ii): conviction) domestic abuser from la- Congress knew that the states had using wide- ter a firearm to next inflict the ly divergent regarding pardon, laws bout ex- of abuse. See id. at 11876. Smith, regain right possess The ants to to F.3d at 625. Smith court fire- arms, protection. it protection holding by equal did not violate equal buttressed its defendant could have See id. at noting that 626.

sought his Iowa state law con- expunge to Eighth opinion Circuit’s Smith is sought par- have viction and could to be persuasive. For the reasons that doned. at 625. Id. reject gave, Smith court we Defendant’s protection equal argument. Hancock, Defendant

In the defendant was convict- had, has, and adequate several legal violating 922(g)(9). ed of disposal mechanisms at his for regaining Hancock, 560. appeal, 231 F.3d at On possess pardon, firearms: alia, argued, that district court inter expungement, setting and aside of con- erred it denied his motion to dismiss when rights” victions. “Restoration of civil equal protection on indictment mechanisms, not one of those as it might grounds. According Id. at 565. be for felons. But that some minor defendant, the restoration of 18 distinction and 921(a)(33)(B)(ii) between felons misde- treated misde- meanants is not sufficient constitute a harshly than it meanants more treated protection. of equal violation Even if it because, Arizona, some felons misde- sufficient, were the distinction is at least their do not lose civil meanants minimally Congress rational. reason- rights whereas felons do lose civil ably could that felons conclude who had may have those “restored.” been Hancock, through pro- state’s 231 F.3d at 566. cess and their civil regained had rejected The Hancock court the defen- (without posses- on their any restriction relying dant’s on Smith: argument, firearms) fit sion of were more to own In Circuit Eighth noted firearms than domestic-violence misde- Congress discrepan- was aware of meanants had not had their convic- procedures revoking cies in state pardoned. tions been expunged or Rea- restoring rights. The court people might argue sonable whether wrote disparate treatment of some good public policy; that distinction is inevitable offenders was the result but it is not irrational. Congress’ to “look to law decision state Hancock, 231 at 566-67. F.3d exception.” to define the restoration Id. Barnes, pleaded at guilty The court further noted that the defendant only one of in 1997 to a pro- charge restoration was several District of Columbia assault, pardon, expungement, at which the F.3d cedures' — met setting being aside of convictions the Barnes court held the definition of a 921(a)(33)(A)(i) §§ through which an offender MCDV under 18 U.S.C. others — (ii). Barnes, could regain fire- 1358-66. stripped away arms. The court of his See id. concluded None (1) because, “entirely it was the law of the District of rational” for under Columbia, the firearm to extend ban to a misdemeanant does not lose (2) misdemeanants; rights. Id. In the defendant domestic-violence discrepancy possessed in treatment and ammunition and of which firearm complained charged violating defendant the inev- was Barnes, Congress’ 922(g)(9). itable F.3d at result reference (3) law; conditionally pleaded guilty state because the He the 18 statute and, charge, means for on 922(g)(9) appeal, contained other misdemean- U.S.C. 274 in a position that he was worse vors argued

he incarcerated misdemeanants over were misdemeanants that not incarcerated. than convicted same of- a Second, other Jennings has avenues he can in a authorized the fense pursue excep- to fall within the restoration also allowed rights loss of civil but (a)(33)(B)(ii); § tion of 921 name- Barnes, 295 F.3d at restoration. Barnes, ly, pardon expungement. defendant, equal pro- According to the Smith, 1368; at F.3d F.3d at 625. rights tection violated because there Third, position accept Jennings’ would was no rational for this distinction. basis exception allow the restoration of rejected Id. The Barnes court the defen- 921(a)(33)(B)(ii) § U.S.C. to swallow the argument foregoing dant’s for the reasons: Smith, rule. 171 F.3d at 624. Under incorporate Congress’s decision state formulation, Jennings’ persons all are law of civil governing forfeiture convicted of a who do not lose MCDV irrespective was rational differences their civil rights permitted would be among regarding states restoration. possess a firearm. Such a construction Furthermore, Congress provided persons all allow almost convicted of expungement other methods such as firearm, a thereby MCDV to pardon might that Barnes use to come substantially undercutting the federal poli- within section cy aimed at to take trying firearms out 921(a)(33). See McGrath persons hands of convicted of (2d States, Cir.1995), 60 F.3d MCDV. denied, cert. 516 U.S. 116 S.Ct. suggests also the word (1996). 929, 133L.Ed.2d 857 another, “restored” capable more lim- Barnes, 295 F.3d at 1368. ited Under Jennings’ construction. more application We conclude literal that the construction, limited a misdemeanant who the word as “restored” contained in 18 does rights, not lose his civil he because 921(a)(33)(B)(ii) i.e., Jennings, U.S.C. incarcerated, was not has had his civil him requiring to demonstrate that his civil rights “restored” under the restoration ex- restored, rights were lost and does not (a)(33)(B)(ii), ception of 18 U.S.C. First, produce an recog- absurd result. while a misdemeanant who does not lose McGrath, Smith, Hancock, nized because cannot under courts, Congress and Barnes knew when it law, state has not had his exceptions enacted the of 18 civil rights “restored.” According to Jen- 921(a)(20) 921(a)(33)(B)(ii) §§ nings, only such a construction would not had drastically several states dif- give meaning ferent governing laws the restoration of 921(a)(33)(B)(ii)’s parenthetical language different, drastically and that “(if applicable jurisdiction the law of the anomalous, perhaps results were bound to provides for the of civil rights loss under Barnes, 1368; occur. 295 F.3d at Han- offense),” 921(a)(33)(B)(ii), such an id. cock, 566-67; Smith, 231 F.3d at put but also would not firearms 624-25; McGrath, 60 F.3d at 1009. persons hands of most convicted of However, Congress intentionally keyed MCDV; rather, up firearms would wind law, restoration to state only persons in the hands of convicted a 624-25; McGrath, 171 F.3d at minority MCDV the small of states that F.3d at it so follows that allow for the civil rights loss of while the consciously accept made the decision to reject defendant is incarcerated. We view, argument. anomalous results—-like result that fa- In our consistent with “knowingly intelligently “restored” waived meaning of word plain right to counsel” in the case. [his] in MCDV the restoration as contained 921(a)(33)(B)(i)(I). addition, 921(a)(33)(B)(ii), § is no Id. In un- § there 18 U.S.C. hold, 921(a)(33)(B)(i)(II), § per- on the der 18 a meaningful way to U.S.C. or logical hand, is not to considered to have person who is convicted of son be been that a one (1) Carolina, of a unless: like “convicted” MCDV a MCDV in a state South prosecuted jurisdic- in rights only MCDV case was strips the state civil where incarcerated, person can tion which was entitled to a the defendant while hand, offense, id.; firearm, and, jury other trial for the MCDV and on the possess (2) jury, either the case was tried before a person who commits a MCDV hold that a 921(a)(33)(B)(i)(II)(aa), § strip rights, id. or the in a state that does not civil posi- “knowingly intelligently and waived the Jennings’ a firearm. cannot by jury, by trial simply right guilty plea because it asks to a or tion is untenable (a)(33)(B)(i)(II) (bb). otherwise,” § multiple to definitions id. 921 this court embrace “restored,” According Jennings, which we decline to to his of the word Moreover, § 922(g)(9) conviction cannot the distinction between stand be- do. knowingly intelligent- who are not incarcerated cause he did not and misdemeanants ly right right who are incarcerated waive his to counsel and his and misdemeanants jury and does not lead to an absurd to a trial the March 1997 CDV is rational Congress reasonably could con- case. result. that misdemeanants who had been clude The guaran Sixth Amendment process a state’s restoration

through right an accused the in all tees counsel were more regained had stages prosecution critical and the misdemeanants fit to own firearms than CONST, right by jury. to a trial U.S. had not had not lost their civil amend. Amendment also VI. Sixth had not expunged, had their convictions right self-representation. guarantees pardoned. been 806, 819, 422 California, Faretta v. 95 U.S. the literal summary, we hold (1975). 2525, A 45 L.Ed.2d 562 crim S.Ct. “re- of the word application defendant, however, “may knowingly inal ex- as contained the restoration stored” voluntarily many waive of the most (a)(33)(B)(ii) § ception of 18 921 U.S.C. protections afforded fundamental Be- produce an absurd result. does Constitution,” v. Mezzanat United States neither Jennings’ cause 201, 797, to, 196, 115 S.Ct. 130 513 U.S. restored, he cannot take ad- revoked nor (1995), right including L.Ed.2d 697 exception of 18 vantage of the restoration 654, counsel, Shelton, 535 Alabama v. U.S. 921(a)(33)(B)(ii). Accordingly, § U.S.C. 1770, 122 152 L.Ed.2d 888 S.Ct. when it re- the district court did not err (2002) (“It controlling rule that is thus Jennings’ to dismiss indictment on fused waiver, knowing intelligent ‘absent a met the restoration ground imprisoned any of person may no (a)(33)(B)(ii). exception of 18 921 U.S.C. represented ... he was fense unless ”) (quoting Argersing at trial.’ counsel

Ill 25, 37, Hamlin, 407 92 S.Ct. er v. U.S. (1972)), (a)(33)(B)(i)(I), right 530 and the 32 L.Ed.2d Under 18 U.S.C. 921 States, trial, v. United 281 jury to have to a Patton person is not to be considered 276, 298, 50 S.Ct. L.Ed. unless he was U.S. been “convicted” of MCDV (1930). valid, case, a defendant’s waiver To be represented by counsel the MCDV denying to counsel and his to a of his defendant’s motion intelligent. trial must be dismiss the indictment on jury knowing ground Shelton, (right at to coun- had been within restored Faretta, sel); 95 S.Ct. meaning U.S. 921(a)(33)(B)(ii). represent (noting decision intelligent); knowing must be oneself Today, majority that 18 decides Patton, 309-13, 50 281 U.S. at S.Ct. 253 921(a)(33)(B)(n) read should be trial). jury to a (right contend, literally, over-literally I re- with “restored,” spect to the word and decides procedure We have reviewed the that the restoration does employed, Judge routinely in that Herbert defendant apply to the because his misde- municipal twenty-one years as a her meanor did not in term conviction result a a waiver of judge, to secure defendant’s his In imprisonment. making this determi- jury to a right to counsel and his trial right nation, however, the majority give fails to are procedure satisfied that the was in parenthetical effect the the language to Jennings’ in 1997 CDV followed March It language statute. is this has that procedure and that the meets consti case brought about the various of the views Accordingly, mínimums.4 we con tutional to Congress’s regard- circuits as intention Jennings knowingly intelligently clude Furthermore, ing gun possession. it is right right waived his counsel and language this that divides the me from trial in jury a the March 1997 CDV case.5 position majority’s today.

IV 921(a)(33)(B)(ii) reads, perti- Section in person “A part: nent shall not be consid- herein, judg- For the reasons stated the ered to have been convicted of an such ment of the district court is affirmed. if the offense ... conviction ... is an AFFIRMED person par- offense which the has been for WIDENER, Judge, dissenting: Circuit doned has had (if or restored respect respectfully I dissent with to the the jurisdiction pro- law of opinion II the majority Section vides loss such under for judgment offense)....” would reverse district an 18 assume, conclusion, reaching we liberty jeopardy In and therefore is not re- deciding, that was defendant, without entitled appoint quired to counsel for that jury a trial under law South Carolina in the though the charged even defendant was March 1997 CDVcase. statutory a imprisonment offense for which Shelton, upon was conviction authorized. argument, Jennings 5. At oral relied on Shel- 1769; Illinois, Scott v. 440 U.S. ton, Supreme by a case decided Court 367, 373, 369, 1158, 99 S.Ct. 59 L.Ed.2d parties’ after briefs were filed this case. case, (1979). was, although Jennings In this Shelton, Supreme held that a Court Shelton, per entitled to counsel in the March imprisonment, prison sentence of actual case, knowingly intelligent- CDV suspended probation sentence or for which ly waived his case. counsel in that granted, triggers the constitutional Accordingly, Jennings. help Shelton is of no Consequently, to counsel. 122 S.Ct. at 1776. Shelton, ("It 122 S.Ct. at 1770 is thus only up depriva- trials that end in the actual controlling knowing rule that 'absent a person's tion of a liberty require that " waiver, intelligent impris- may no accused guiding receive 'the hand coun- ” any repre- oned offense ... Argersinger, sel.' Id. at unless he was (quoting ”) 2006). U.S. at (quoting 92 S.Ct. that sented counsel at his trial.’ A court ends up fining placed 2006). Argersinger, defendant has not 407 U.S. at 92 S.Ct. added). 921(a)(33)(B)(ii) applicable jurisdiction ple I within an to ben- (emphasis exception. from the it majority this lan- efit While does agree with “look to state seem that knew it would create intended to guage Congress exception” jur- anomalous results from the restoration law to define isdiction, suggest nothing I aware that it would create keenly and was that Congress of the federal law statute indicates intended disparity application Indeed, 271-274, citing today’s the results of decision. the States. See among majority’s reading, 625 under the within the v. F.3d (8th Cir.1999). Carolina,’ defendant, also United States State South See Cir.2002) (6th here, would be unable to a firearm Wegrzyn, 305 F.3d underlying allow the states them- because his crime did not war- (“Congress chose to incarceration, rant but parameters another offender in to dictate selves justified im- recognizing the dif- that same State whose crime statutory exception by prisonment qualify concerned with for the section among state laws ferences 921(a)(33) exception. Wegrzyn, for cer- rights upon conviction See loss offenses.”). (noting Michigan it that F.3d at 595 that in some- is clear Con- tain While law, egregious it not a more of- to defer to state is one who “committed gress elected recognize justifying fense incarceration would never- Congress that desired patent States, upon completion also theless be of a disparity among both allowed— firearm, State, jail possess a while majority as the sentence —to within an individual transgres- another misdemeanant whose require. decision punishment sion did not merit such severe that Upon might it seem glance, first harshly more at the con- would be treated construing majority’s reading is correct: punishment”). clusion of a more lenient over-literally, the de- word “restored” revoked, majority only never Not does the decision re rights civil fendant’s result, therefore, goes it nothing quire to restore such an unreasonable there was inapplica- beyond what the other circuits have decid exception restoration and the In respect ed with to this issue. each of pertains it to him. But this is like ble as relies, majority decisions on which the yet tea to Alice who the offer of “more” Wonderland, juris in predicate convictions were not Alice in had had none. See 1980, Carroll, provided for the loss of civil Dunlop, p. 79. dictions Grossett & See United rights the directive for misdemeanants. Applying reading ignores this Barnes, 1354, 1368 v. 295 F.3d parenthetical in the section contained (D.C.Cir.2002) (noting that there is no law (if the law the statute that forfeits the civil in the District of Columbia provides the loss jurisdiction for misdemeanants, finding part rights much a civil rights), which is as juris violation in those part. constructing equal protection no any other statute statute, provide for loss of civil dictions that do Congress intended the resto- Hancock, rights); between United States exception ration differentiate (9th Cir.2000), 557, de cert. jurisdictions in misdemean- F.3d 565-66 those 989, 1641, nied, may civil and those 532 U.S. ants lose their (2001) (stating L.Ed.2d misde- jurisdictions provide that do not for such a in not lose their civil mistakenly, meanants Arizona do majority’s reading, loss. believe, to find it a violation of rights, refusing in- I assumes that also who lose their equal protection felons among to differentiate individual tended the restora peo- rights could benefit from only and allow some misdemeanants misdemeanants do that exception they while such civil “to the extent tion not); away, States v. 171 F.3d were never taken should treated United ” Cir.1999) (8th (noting that the as ‘restored.’ 97 F.3d at 631. 623-25 exception ap does not federal restoration case, More like our the Sixth Circuit strip law Iowa does misde- ply because decision in Wegrzyn, United States v. finding their civil meanants of indistinguishable case on facts from the protection violation the fact equal no hand, case involved a qualify exception for an that felons can exception appli- which the restoration 921(a)(20)); McGrath v. under 18 U.S.C. cable Michigan provides because law (2d States, Cir.1995), F.3d 1005 loss for conviction of a denied, 516 U.S. 116 S.Ct. cert. “only misdemeanor while confined a cor- (1996) (addressing 133 L.Ed.2d facility.” rectional Wegrzyn, See exception provided Facing at 595. a similar situation to the 921(a)(20) finding that under Ver today, Wegrzyn one we have here felons who are convicted but mont law defendant, court determined that the while do not never incarcerated lose their civil incarcerated, never should from benefit rights). But cf. United States v. Meza- the restoration it gives because (9th Corrales, 183 F.3d 1129 n. 5 effect to Congress’s intention to let state (“McGrath Cir.1999) disagreed has been law control. I Wegrzyn, 305 F.3d at 595. circuits, a number other includ agree Wegrzyn with the Adopting court. upon which ing the one the authors of majority’s our reading of the statute actu- relied, initially including McGrath ally disparate enables federal law to create ....”) (citations omitted). Ninth Circuit State, results within the same which seems Thus, exception the restoration could not directly against to me to cut providing the in applied any to the defendants of with parameters States control over the of and the courts were those cases not re individual crimes. quired to decide whether intend ed anomalous results to occur within a Additionally, finding that the restoration Indeed, jurisdiction. the Eighth exception Circuit in apply should to the defendant distinguished not, v. Smith fears, a would I suggest, majority as the contrary reading adopted by of the statute “allow the restoration exception ... to First Circuit United States v. Indeli Op. swallow the rule.” at 274 (citing (1st cato,* Cir.1996), 624). Smith, specifi 97 F.3d 627 parentheti- 171 F.3d at cally because the Indelicato court had an language only cal that dictates limited applicable state law that jurisdictions enabled it to fit number of will be able exception. under the federal apply The Smith exception, only thus court that jurisdictions reasoned the Indelicato court those limited will even face “indulging was in a fiction” in which problem. it was this Deciding juris- those liberty engage.” not “at 171 dictions in which exception applies F.3d at But Indelicato consistency respect concluded should have * analysis Indelicato involved an of years 18 U.S.C. onment of two less] has 921(a)(20), which does not contain the expunged, been or set aside or for which a 921(a)(33), parenthetical language same pardoned has been or has had civil pertinent part: and reads in rights restored shall not be considered a Any any conviction State [of offense classi- purposes chapter.... conviction for of this fied the laws of the State as a misde- 921(a)(20). punishable by impris- meanor and a term of not alter' offenders does Con- their own XOOM, INCORPORATED; Aztech New enacting ultimate intention

gress’s Corporation Media International jur- those differentiate between statute: (Joined); Graphics Media Interna strip misdemeanants isdictions tional, Incorporated (Joined), Plain those that do not tiffs-Appellees, they to how defer to the States as order to of the crime. define the boundaries Ninth, Second, Eighth, Unlike Circuits,

District Columbia Digital Publishing USA, MacMillan must address parenthetical language Prentice-Hall, division of Incor (a)(33)(B)(ii) of section 921 because South porated (Joined), Plaintiff, jurisdiction that type is the Carolina enacting Congress contemplated While it seems clear Con-

statute. IMAGELINE, INCORPORATED; (and expected) was aware indeed gress George Riddick, III, P. De anomalous results that would that certain fendants-Appellants, wording from its section arise 921(a)(33), gleaned from the it cannot be language of the statute Compliance Services, Incorporated; majority has designed apply as the Wayne Nystrom; Sprint K. Software Congress intended to allow today. done Party Limited, Defendants. parameters the States to define crimes,

individual and this court should No. 02-1121. just to do that. The State of allow them strip misde- South Carolina has elected Appeals, United States Court therefore, rights; section meanants Fourth Circuit. (a)(33)(B)(ii) should be Argued: Dec. jurisdiction. in that To al- misdemeanants the federal rule to then alter the law low Decided: March within that by providing that misdemeanants whose crimes did not war-

rant incarceration should not be allowed to

possess guns, when those who did serve may possess guns,

time removes the con- Congress origi-

trol from

nally intended. reasons,

For I re- foregoing

verse the decision of the district court and

hold that the restoration of 18 921(a)(33)(B)(ii) applica- exempts to the 922(g)(1)

tion of 18 U.S.C.

defendant.

Case Details

Case Name: United States v. Raymond Jennings

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Mar 19, 2003

Citation: 323 F.3d 263

Docket Number: 01-4927

Court Abbreviation: 4th Cir.