United States v. Hairston

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-4958

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

BARION LEE HAIRSTON, a/k/a Big Daddy,

Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Jr.,
District Judge. (1:08-cr-00060-WO-1)

Argued: December 3, 2009 Decided: February 4, 2010

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Affirmed by unpublished opinion.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.

ARGUED: Thomas Norman Cochran, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greensboro, North Carolina, for Appellant. Terry
Michael Meinecke, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee. ON BRIEF: Anna Mills
Wagoner, United States Attorney, L. Patrick Auld, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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BAILEY, Chief District Judge:

Barion Hairston (Hairston or defendant) pleaded guilty to

being a felon in possession of a firearm, in violation of 18

U.S.C. § 922(g). At sentencing, the district court adopted the

presentence investigation report (PSR) without objection. In

particular, the PSR concluded that Hairston had at least three

prior “violent felony” convictions, 1 qualifying him as an “armed

career criminal” under the provisions of 18 U.S.C. § 924(e) and

subjecting him to an enhanced sentence under U.S.S.G. § 4B1.4.

After accepting the findings contained in the PSR, the district

court imposed an enhanced sentence of 210 months imprisonment.

For the first time, on appeal, Hairston challenges the

district court’s use of these prior convictions to form a basis

for the § 4B1.4 enhancement. 2 It is not disputed that his civil

rights had once been restored under North Carolina law. Thus,

Hairston argues, convictions for these offenses could not be

used as predicate convictions to support an enhanced sentence.

1
In particular, Hairston had the following prior felony
convictions at the time of his arrest in 2007: (1) an August
1981 conviction for breaking and entering; (2) an August 1981
conviction for attempted robbery; (3) an August 1981 conviction
for breaking and entering; (4) an August 1985 conviction for
breaking and entering; and (5) an April 2003 conviction for
habitual misdemeanor assault.
2
Because this challenge was not raised before the district
court, we review for plain error. See United States v. Olano,
507 U.S. 725 (1993).

3
We disagree, and for the reasons that follow, affirm the

sentence.

I.

Section 4B1.4 of the sentencing guidelines imposes an

enhanced sentence on anyone who is an armed career criminal as

defined by 18 U.S.C. § 924(e)(1). Section 924(e)(1) applies to

anyone who violates 18 U.S.C. § 922(g) and has three or more

previous “violent felony” convictions. 3 As we explained in

United States v. Clark, 993 F.2d 402, 403 (4th Cir. 1993),

“violent felony” convictions are those “of the type referred to

in 18 U.S.C. § 924(e)(2)(B).” Section 922(g)(1) applies to

convictions for crimes “punishable by imprisonment for a term

exceeding one year.” However, as we recognized in United States

v. O’Neal, 180 F.3d 115, 119 (4th Cir. 1999), there is “an

important exception”:

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.

18 U.S.C. § 921(a)(20) (emphasis added).

3
Section 924(e) is also triggered by three or more previous
“serious drug offense” convictions or a combination of the two.

4
 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 federal 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 N.C. Gen. Stat. § 13-1.

Upon his release in 1987, Hairston regained his “rights of

citizenship,” including his rights to vote, hold office, and

serve jury duty. N.C. Gen. Stat. §§ 163-55(2) and 9-3; see

McLean, 904 F.2d at 217 n.1. However, Hairston did not

immediately regain his right to possess a firearm upon his

release. At that time, North Carolina’s Felony Firearms Act

prohibited convicted felons from possessing firearms for five

5
years after release from prison. N.C. Gen. Stat. § 14-415.1(a)

(1975).

In 1995, North Carolina amended the Felony 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 N.C. Gen.

Stat. § 14-415.1(a) (1995). 4

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) that pursuant to the second sentence

of section 921(a)(20) his 1980s convictions do not count as

predicate offenses under section 924(e).

4
Effective December 1, 2004, North Carolina amended the
Felony Firearms Act to expand the scope of its restriction to
include all firearms and, in so doing, retained the 1995
version’s permanent ban. N.C. Gen. Stat. § 14-415.1(a) (2004).
Finally, in 2006, the legislature modified the Felony Firearms
Act to exempt “antique firearms” from the proscription of felons
possessing firearms. 2006 N.C. Sess. Law, ch. 259, sec. 7(b).

6
 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). According 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 impression 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 under sections 922(g)(1) and

924(e)? 5 A review of the recent case law of this Court and the

5
In fact, in O’Neal, this Court explicitly noted, “We have
no occasion to pass on any issues regarding whether North
Carolina would allow a change in its laws to strip a felon of
(Continued)
7
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 1999, we rejected an argument that retroactive

application of the former five-year ban on firearm possession

was unconstitutional under the Ex Post Facto Clause. See

O’Neal, 180 F.3d at 123. In so doing, this Court applied a two-

part test. Id. at 122-123. In particular, a court should first

ask whether the legislature’s intent was to impose a punishment

or merely enact a civil or regulatory law. Id. at 122. Next, a

court should determine whether the disability is “so punitive in

fact” as to negate any civil or regulatory intent. Id. In

applying this test, we first found that “North Carolina has made

clear that its intent to enact a civil disability to protect the

public from those felons, whose possession of guns there was the

his previously restored right to possess firearms, and if so
what effect that would have under sections 922(g)(1) and 924(e)
. . ..” O’Neal, 180 F.3d at 121, n.6.

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most reason to fear, not to impose any punishment on felons.”

Id. at 123. Second, we concluded that the five-year ban does

not impose punishment; rather, the probationary period provides

an additional civil disability in an effort to protect the

public. Id. at 124.

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

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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, including 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

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“an unreasonable regulation, 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 citizen 6 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.

Id.
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

6
This refers to the fact that Britt’s underlying felony was
a nonviolent drug offense, which did not involve the use of a
firearm. Unlike Britt, Hairston is a violent citizen, as
indicated by his previous “violent felony” convictions. Thus,
Hairston’s case is distinguishable from Britt II.
7
The Court notes that, under circumstances like in Britt
II, a felon’s right to possess firearms may again be restored by
judicial determination. This represents the sole limitation,
under existing North Carolina case law, to the power of the
(Continued)
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 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 clearly 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:

North Carolina Felony Firearms Act to strip previously restored
firearm rights.
8
The Illinois firearms statute in effect at the relevant
time provided the same five-year temporary ban as the North
Carolina version Hairston now seeks to apply.

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 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 as 720 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 possess guns at the time of his
arrest in 1998.

Id. at 330.

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 Carolina law may have allowed Hairston to possess

firearms between October 1, 1992 (date of restoration) and

December 1, 1995 (effective date of complete ban), that does not

require the permanent exclusion of Hairston’s 1980s convictions

for purposes of invoking section 924(e)’s enhanced sentencing

provisions. As for the Melvin Court, most significant for this

Court is that North Carolina did not allow Hairston to possess

guns at the time of his arrest in 2007. In other words, though

Hairston’s right to possess a weapon had once been restored, it

had again been stripped by virtue of the 1995 amendment. As a

result, these convictions were once again available for purposes

of sections 922(g)(1) and 924(e). Accordingly, it was not plain

13
error for the district court to apply the enhanced sentencing

provisions of section 924(e).

IV.

Because Hairston’s claim that his 1980s convictions should

not trigger application of 18 U.S.C. § 924(e) fails on the

merits, it fails pursuant to either plain error or de novo

review. Accordingly, we affirm the district court’s finding of

armed career criminal status and the resulting imposition of a

210-month sentence.

AFFIRMED

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