Wyoming Ex Rel. Crank v. United States

FILED
United States Court of Appeals
Tenth Circuit

August 26, 2008
Elisabeth A. Shumaker
Clerk of Court
PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STATE OF WYOMING, ex rel.
Patrick J. Crank, Wyoming Attorney
General,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA;
BUREAU OF ALCOHOL,
TOBACCO, FIREARMS, AND
EXPLOSIVES; CARL J. TRUSCOTT,
in his official capacity as Director of
Bureau of Alcohol, Tobacco, Firearms,
and Explosives; DAVID H. No. 07-8046
CHIPMAN, in his official capacity as
Chief, Firearms Division, Bureau of
Alcohol, Tobacco, Firearms, and
Explosives,

Defendants-Appellees,

GUN OWNERS FOUNDATION; THE
BRADY CENTER TO PREVENT
GUN VIOLENCE AND THE
NATIONAL CENTER FOR VICTIMS
OF CRIME,

Amici Curiae.

Appeal from the United States District Court
for the District of Wyoming
 (D.C. No. 06-CV-0111-J)

C. Levi Martin, Senior Assistant Wyoming Attorney General (Patrick J. Crank,
Wyoming Attorney General, with him on the brief), Cheyenne, Wyoming, for
Plaintiff-Appellant.

Michael S. Raab (Peter D. Keisler, Assistant United States Attorney General,
Matthew H. Mead, United States Attorney, Mark B. Stern, and Alexander K.
Haas, with him on the briefs), Washington, D.C., for Defendants-Appellees.

Herbert W. Titus, John S. Miles, and William J. Olson, William J. Olson, P.C.,
McLean, Virginia, filed an Amicus Curiae brief for Gun Owners Foundation, in
support of Plaintiff-Appellant.

Timothy M. Walsh and George R. Calhoun, V, Steptoe & Johnson LLP,
Washington, D.C., filed an Amicus Curiae brief for The Brady Center and The
National Center for Victims of Crime, in support of Defendant-Appellee.

Before LUCERO, EBEL, and HOLMES, Circuit Judges.

EBEL, Circuit Judge.

In 2004, the State of Wyoming enacted § 7-13-1501, which established a

procedure to expunge misdemeanor convictions “for the purposes of restoring any

firearm rights lost.” Wyo. Stat. Ann. § 7-13-1501(a). The Bureau of Alcohol,

Tobacco, Firearms, and Explosives (“ATF”), however, informed the Wyoming

Attorney General that § 7-13-1501 would not restore federal firearm rights

because the state statute did not satisfy the definition of “expunge” or “set aside”

for the purposes of 18 U.S.C. § 921(a)(33)(B)(ii). The Wyoming Attorney

General sought review of the ATF’s interpretation of § 921(a)(33)(B)(ii) and § 7-

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13-1501 in federal district court. The district court concluded that the ATF’s

interpretation was neither arbitrary nor capricious and thus dismissed Wyoming’s

suit.

After conducting our de novo review of these statutes, we conclude that

Congress intended the terms “expunge” and “set aside” as used in

§ 921(a)(33)(B)(ii) to require a state procedure that completely removes the

effects of the misdemeanor conviction in question. Accordingly, the district court

properly dismissed Wyoming’s claim because § 7-13-1501 falls short of this

standard.

I.

Title 18, section 922(g)(9) of the United States Code prohibits any person

convicted of a misdemeanor crime of domestic violence from owning a firearm

that has traveled in interstate commerce. The statute defines a misdemeanor

crime of domestic violence as a misdemeanor pursuant to federal, state, or tribal

law that incorporates, “as an element, the use or attempted use of physical force”

against someone in a domestic relationship with the defendant. Id.

§ 921(a)(33)(A). The statute, however, excludes any misdemeanor conviction

that has been expunged or set aside. 1 Id. § 921(a)(33)(B)(ii). 2

1
Section 921(a)(33)(B)(ii) states in full:
A person shall not be considered to have been convicted of such an
offense for purposes of this chapter if the conviction has been
expunged or set aside, or is an offense for which the person has been
(continued...)

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 In light of this exception, in 2004, the Wyoming legislature established a

procedure to expunge convictions of domestic violence misdemeanors. See Wyo.

Stat. Ann. § 7-13-1501. 3 If a person previously convicted of a misdemeanor

1
(...continued)
pardoned or has had civil rights restored (if the law of the applicable
jurisdiction provides for the loss of civil rights under such an
offense) unless the 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)(33)(B)(ii).
2
Sections 921 and 922 are part of the Gun Control Act, as amended. See
Pub. L. No. 90-351, Title IV, § 902, 82 Stat. 197, 226–31.
3
Section 7-13-1501 provides, in relevant part:
(a) A person who has pleaded guilty or nolo contendere to or been
convicted of a misdemeanor or misdemeanors arising out of the same
occurrence or related course of events may petition the convicting
court for an expungement of the records of conviction for the
purposes of restoring any firearm rights lost, subject to the following
limitations:

(i) At least one (1) year has passed since the expiration of the terms
of sentence imposed by the court, including any periods of probation
or the completion of any program ordered by the court;
(ii) Other than convictions arising out of the same occurrence or
related course of events, the petitioner has not previously pleaded
guilty or nolo contendere to or been convicted of a misdemeanor for
which firearm rights have been lost;
(iii) The misdemeanor or misdemeanors for which the person is
seeking expungement shall not have involved the use or attempted
use of a firearm.
...
(g) If the court finds that the petitioner is eligible for relief under this
section and that the petitioner does not represent a substantial danger
to himself, any identifiable victim or society, it shall issue an order
granting expungement of the applicable records. The court shall also
(continued...)

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crime of domestic violence satisfies the criteria listed in the statute, the statute

authorizes the state court to seal the records relating to the conviction. Id. § 7-13-

1501(g). The statute specifically provides, however, that such an expunction is

only “for the purposes of restoring any firearm rights lost.” Id. § 7-13-1501(a);

see also id. § 7-13-1501(k) (“An expungement granted pursuant to this section

shall only be used for the purposes of restoring firearm rights that have been lost

to persons convicted of misdemeanors. Nothing in this section shall be construed

to affect the enhancement of penalties for second or subsequent convictions of

misdemeanors under the laws of this state.”).

This Wyoming expunction statute—if effective for the purposes of

§ 921(a)(33)(B)(ii)—would have three consequences. First, it would allow

individuals with expunged convictions legally to possess firearms pursuant to 18

U.S.C. §§ 921(a)(33)(B)(ii) and 922(g)(9). Second, it would allow those

individuals to apply for a Wyoming permit to carry a concealed weapon. See

3
(...continued)
place the court files under seal, available for inspection only by order
of that court. The court shall transmit a certified copy of the order to
the division of criminal investigation.
...
(k) An expungement granted pursuant to this section shall only be
used for the purposes of restoring firearm rights that have been lost
to persons convicted of misdemeanors. Nothing in this section shall
be construed to affect the enhancement of penalties for second or
subsequent convictions of misdemeanors under the laws of this state.
Wyo. Stat. Ann. § 7-13-1501.

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Wyo. Stat. Ann. § 6-8-104(b) (dictating that a permit may not be issued to any

person who is ineligible to possess a firearm pursuant to 18 U.S.C. § 922(g)).

Third, it would allow those individuals with a concealed-carry permit issued

pursuant to Wyoming law to purchase firearms from a federally licensed firearm

dealer without submitting to a background check. See 18 U.S.C. § 922(t)(3)(A)

(declaring that a dealer is not required to request a background check before

transferring a firearm if the transferee possesses a state permit).

In August 2004, after the Wyoming legislature enacted § 7-13-1501, the

ATF sent the Wyoming Attorney General a letter indicating that the ATF

determined that federal—not state—law governed the definition of “expunge” for

purposes of 18 U.S.C. § 921(a)(33)(B)(ii), and that the Wyoming statute did not

meet the federal definition. Thus, the ATF concluded that any person with a

conviction expunged pursuant to Wyo. Stat. Ann. § 7-13-1501 would still face

criminal liability pursuant to 18 U.S.C. § 922(g) for possessing a gun.

Approximately one year later, the ATF sent the Wyoming Attorney General

another letter that reiterated its position and explained that the ATF would notify

federally licensed firearm dealers that a Wyoming concealed-carry permit would

no longer excuse a background check pursuant to 18 U.S.C. § 922(t)(3)(A). The

Wyoming Attorney General responded with a letter contesting the ATF’s

conclusion that federal law governed the definition of expunge. In turn, the ATF

gave Wyoming a choice: either bar individuals with convictions expunged

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pursuant to § 7-13-1501 from obtaining concealed-carry permits, or draft

legislation to fix the disparity between the federal definition of expunge and § 7-

13-1501. If Wyoming failed to comply with one of these alternatives, the ATF

indicated that it would require federally licensed firearm dealers to conduct

background checks on all concealed-carry permit holders. 4 Wyoming refused to

comply, and instead filed a suit in federal court seeking injunctive and declaratory

relief.

After briefing by the parties, the district court determined that Wyoming

had standing to bring the instant action, but held that § 7-13-1501 did not comply

with the term “expunge” as set forth in 18 U.S.C. § 921(a)(33)(B)(ii). Thus, the

district court dismissed the suit. The state of Wyoming now appeals. 5

II.

Before turning to the merits, we must address the threshold question of

whether Wyoming has the requisite Article III and prudential standing to bring

this suit. We review de novo questions of standing, New England Health Care

Employees Pension Fund v. Woodruff, 512 F.3d 1283, 1288 (10th Cir. 2008), and

4
Subsequently, the ATF modified its position, and removed the legislative
fix option from the table. Thus, Wyoming’s only option to comply with the
ATF’s demand was to exclude individuals with convictions expunged pursuant to
§ 7-13-1501 from the concealed-carry-permit program.
5
Although Wyoming unsuccessfully presented an argument regarding the
Tenth Amendment to the district court, it does not reassert that argument on
appeal. Accordingly, Wyoming has waived that argument. State Farm Fire &
Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994).

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we must address Article III standing before conducting our prudential standing

analysis, Mount Evans Co. v. Madigan, 14 F.3d 1444, 1451 (10th Cir. 1994).

A.

In its simplest terms, our Article III standing inquiry ensures that we limit

our jurisdiction to “Cases” and “Controversies.” Kan. Judicial Review v. Stout,

519 F.3d 1107, 1115 (10th Cir. 2008). In general, this inquiry seeks to determine

“whether [the plaintiff has] ‘such a personal stake in the outcome of the

controversy as to assure that concrete adverseness which sharpens the

presentation of issues upon which the court so largely depends for illumination.’”

Massachusetts v. EPA, 127 S. Ct. 1438, 1453 (2007) (quoting Baker v. Carr, 369

U.S. 186, 204 (1962)). We determine whether the plaintiff has satisfied this

general inquiry using three familiar requirements. Pursuant to Article III, to have

standing, a plaintiff must demonstrate: (i) an injury in fact that is both concrete

and particularized as well as actual or imminent; (ii) an injury that is traceable to

the conduct complained of; and (iii) an injury that is redressable by a decision of

the court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992); State ex

rel. Sullivan v. Lujan, 969 F.2d 877, 880 (10th Cir. 1992).

In the context of the instant case, we must also keep in mind the Supreme

Court’s recent guidance that the States constitute a special class of plaintiffs for

federal jurisdiction purposes. The Massachusetts Court stated that “[i]t is of

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considerable relevance that the party seeking review here is a sovereign State and

not, as it was in Lujan, a private individual.” Massachusetts, 127 S. Ct. at 1454.

In addition, the Court highlighted that “[w]ell before the creation of the modern

administrative state, we recognized that States are not normal litigants for the

purposes of invoking federal jurisdiction.” Id.

With this in mind, we consider whether the familiar three-pronged standing

analysis demonstrates that Wyoming’s stake in this litigation is sufficiently

adverse to the defendants to establish standing. Wyoming alleges that it has

suffered an injury in fact because the ATF’s interpretation of § 7-13-1501

undermines its ability to enforce its legal code. To remedy this alleged injury,

Wyoming sought declaratory and injunctive relief. In light of the “special

solicitude” the Massachusetts Court afforded to states in our standing analysis,

id., and because our discussion below demonstrates that Wyoming’s stake in this

controversy is sufficiently adverse, we conclude that Wyoming has Article III

standing.

The States have a legally protected sovereign interest in “the exercise of

sovereign power over individuals and entities within the relevant jurisdiction[,

which] involves the power to create and enforce a legal code.” Alfred L. Snapp &

Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 601 (1982). Federal

regulatory action that preempts state law creates a sufficient injury-in-fact to

satisfy this prong. See Alaska v. U.S. Dep’t of Transp., 868 F.2d 441, 443 (D.C.

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Cir. 1989); Ohio ex rel. Celebrezze v. U.S. Dep’t of Transp., 766 F.2d 228, 232-

33 (6th Cir. 1985). Accordingly, we conclude that Wyoming has sufficiently

alleged an injury-in-fact because the ATF’s interpretation of § 7-13-1501

interferes with Wyoming’s ability to enforce its legal code.

Moreover, there is little doubt that Wyoming’s alleged injury satisfies the

traceability and redressability requirements of standing. Article III requires

“‘proof of a substantial likelihood that the defendant’s conduct caused plaintiff’s

injury in fact.’” Habecker v. Town of Estes Park, 518 F.3d 1217, 1225 (10th Cir.

2008) (quoting Nova Health Sys. v. Gandy, 416 F.3d 1149, 1156 (10th Cir.

2005)). Article III also requires “‘that it is likely that a favorable court decision

will redress the injury to the plaintiff.’” Summum v. Duchesne City, 482 F.3d

1263, 1268 (10th Cir. 2007) (quoting Utah Animal Rights Coal. v. Salt Lake City

Corp., 371 F.3d 1248, 1255 (10th Cir. 2004)). Wyoming’s alleged injury fulfills

both requirements because the ATF’s interpretation of § 7-13-1501 directly

caused the injury and the requested injunctive and declaratory relief would bar the

effect of that interpretation. Wyoming, therefore, has satisfied Article III’s

standard requirements, and we thus turn to consider whether Wyoming has

similarly satisfied the prudential standing requirements.

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 B.

Wyoming relies on § 704 of the Administrative Procedure Act (“APA”) to

challenge the defendants’ interpretation and application of sections 921 and 922

of the Gun Control Act. 6 Therefore, “[i]n addition to Article III standing

requirements, [Wyoming] . . . must (i) identify some final agency action and (ii)

demonstrate that its claims fall within the zone of interests protected by the

statute forming the basis of its claims.” Catron County Bd. of Comm’rs v. U.S.

Fish & Wildlife Serv., 75 F.3d 1429, 1434 (10th Cir. 1996). We consider each of

these requirements in turn.

The APA defines agency action, see 5 U.S.C. § 551(13), 7 but it does not

define “final.” Therefore, we evaluate whether an agency action is final based on

two conditions. The agency action must “‘mark the consummation of the

agency’s decisionmaking process.’” HRI, Inc. v. EPA, 198 F.3d 1224, 1236 (10th

Cir. 2000) (quoting Bennett v. Spears, 520 U.S. 154, 177-78 (1997) (further

quotation omitted)). In addition, “‘the action must be one by which rights or

obligations have been determined or from which legal consequences will flow.’”

Id. (quoting Bennett, 520 U.S. at 178 (further quotation omitted)).

6
Section 704 states, in pertinent part: “Agency action made reviewable by
statute and final agency action for which there is no other adequate remedy in a
court are subject to judicial review.” 5 U.S.C. § 704.
7
Section 551(13) defines agency action as: “the whole or a part of an
agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or
failure to act.” 5 U.S.C. § 551(13).

- 11 -
 An agency action is not consummate if it is “tentative [or] interlocutory [in]

nature.” Pennaco Energy, Inc. v. U.S. Dep’t of Interior, 377 F.3d 1147, 1155

(10th Cir. 2004). Here, there is no reason to believe that the ATF’s interpretation

is either tentative or interlocutory. The ATF sent the Wyoming Attorney General

five separate letters communicating that: (i) the ATF analyzed § 7-13-1501 and

determined that “it will [not] have any effect whatsoever” on § 922(g)(9)’s

proscription of firearm possession; (ii) the ATF determined that the Wyoming

concealed-carry-permit program no longer qualified as an alternative to the NCIS

background check system; and (iii) the ATF imposed a final deadline for action

by the state of Wyoming to remedy the shortcomings of the concealed-carry-

permit program. The cumulative effect of these letters demonstrates that the

ATF’s interpretation of § 7-13-1501 has been definite and unqualified since its

initial letter in 2004. The fact that each letter is signed by either the Chief or

Deputy Chief of the ATF Firearms Division bolsters the finality of the

interpretation.

It is also clear that definite legal consequences flow from the ATF’s

interpretation. As the ATF letters state, the interpretation’s results are two-fold.

First, individuals with misdemeanor domestic violence convictions expunged

pursuant to § 7-13-1501 cannot own or possess a gun pursuant to 18 U.S.C.

§ 922(g)(9), notwithstanding Wyoming’s efforts to the contrary in § 7-13-1501.

Second, because § 7-13-1501 would permit individuals with misdemeanor

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domestic violence convictions to obtain a Wyoming concealed-carry permit, that

permit program no longer qualifies as a NCIS background check alternative. Due

to these two legal consequences, as well as the definite nature of the ATF’s

statements regarding § 7-13-1501, we conclude that those statements constitute

final agency action.

Turning to the zone of interests test, the Supreme Court has explained that

“[t]he proper inquiry is simply ‘whether the interest sought to be protected by the

complainant is arguably within the zone of interests to be protected . . . by the

statute.’” Nat’l Credit Union Admin. v. First Nat’l Bank & Trust Co., 522 U.S.

479, 492 (1998) (quoting Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397

U.S. 150, 153 (1970)). In other words, the statute in question need not indicate

that Congress intended to benefit the plaintiff’s interests. Id. We therefore

analyze whether a plaintiff satisfies the zone of interests test by “discern[ing] the

interests ‘arguably . . . to be protected’ by the statutory provision at issue,” and

then by “inquir[ing] whether the plaintiff’s interests affected by the agency action

in question are among them.” Id.

The Gun Control Act (the “Act”) primarily focuses on regulating the

possession and transportation of firearms. The Act, however, also grants states

significant latitude to determine the applicability of the Act by relying on state

law, in part, to determine the classes of individuals that may not possess a

firearm. See 18 U.S.C. § 922(g)(1) (prohibiting individuals “convicted in any

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court of, a crime punishable by imprisonment for a term exceeding one year”

from possessing firearms (emphasis added)); id. § 922(g)(9) (prohibiting

individuals “convicted in any court of a misdemeanor crime of domestic violence”

from possessing a firearm (emphasis added)); see also id. § 921(a)(33)(B)(ii)

(dictating that a prior conviction no longer has force or effect for the purposes of

the Act if it has been expunged or set aside pursuant to state law). Therefore, in

light of the states’ interest in influencing the applicability of the Act, we conclude

that Wyoming’s alleged injury falls within the zone of interests of the Act.

Accordingly, Wyoming has satisfied both prongs of our prudential standing

analysis, and we turn to the merits of the instant appeal.

III.

A.

We review de novo the district court’s decision in a case brought pursuant

to the APA. N.M. Cattle Growers Ass’n v. U.S. Fish & Wildlife Serv., 248 F.3d

1277, 1281 (10th Cir. 2001). The APA provides the standard by which we must

review the ATF’s interpretation. Section 706 states, in relevant part:

the reviewing court shall decide all relevant questions of law,
interpret constitutional and statutory provisions, and determine the
meaning or applicability of the terms of an agency action. The
reviewing court shall . . . hold unlawful and set aside agency action,
findings, and conclusions found to be . . . arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.

5 U.S.C. § 706. An agency’s decision is arbitrary and capricious if the agency:

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 ‘relied on factors which Congress had not intended it to consider,
entirely failed to consider an important aspect of the problem,
offered an explanation for its decision that runs counter to the
evidence before the agency, or is so implausible that it could not be
ascribed to a difference in view or the product of agency expertise.’

Lamb v. Thompson, 265 F.3d 1038, 1046 (10th Cir. 2001) (quoting Friends of the

Bow v. Thompson, 124 F.3d 1210, 1215 (10th Cir. 1997)). With this standard in

mind, we consider the ATF’s interpretation.

B.

Wyoming contends that because § 7-13-1501 constitutes an “expungement”

or “set aside” for the purposes of 18 U.S.C. § 921(a)(33), the ATF’s interpretation

of § 921(a)(33) and § 7-13-1501 is arbitrary and capricious. In response, the ATF

asserts that its interpretation is neither arbitrary nor capricious because the partial

effect of § 7-13-1501 does not constitute an expungement or set aside as used in

§ 921(a)(33). Unfortunately, the Act does not define expunge or set aside, and

therefore we must undertake a careful analysis of the statute to determine

Congress’s intent. 8 See N.M. Cattle Growers, 248 F.3d at 1281.

Section 921(a)(33)(B)(ii) states:

A person shall not be considered to have been convicted of such an
offense for purposes of this chapter if the conviction has been expunged
or set aside, or is an offense for which the person has been pardoned or

8
Amici Gun Owners Foundation contends that we should consider whether
§ 7-13-1501 constitutes an expungement or a set aside by referencing a state law
standard. Wyoming, however, did not raise this argument in its brief. We
therefore decline to address this argument. See Tyler v. City of Manhattan, 118
F.3d 1400, 1404 (10th Cir. 1997).

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 has had civil rights restored (if the law of the applicable jurisdiction
provides for the loss of civil rights under such an offense) unless the
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)(33)(B)(ii) (emphasis added). There are two possible

interpretations for the phrase “expunged or set aside.” First, the use of the

disjunctive “or” could indicate that Congress intended the two terms to have

separate meanings. Second, Congress may have intended the two terms to have

the same meaning and used separate terms merely to avoid potential issues of

terminology created by the varying language used in the different laws of the

States. As discussed in greater detail below, we conclude that Congress intended

both terms equivalently to require that a state procedure completely remove the

effects of the conviction in question. The ATF’s interpretation is consistent with

this construction of the statute, and accordingly, we hold that the ATF’s

interpretation is neither arbitrary nor capricious.

i. Plain language of the statute

“‘As in all cases requiring statutory construction, we begin with the plain

language of the law.’” N.M. Cattle Growers, 248 F.3d at 1281 (quoting St.

Charles Inv. Co. v. CIR, 232 F.3d 773, 776 (10th Cir. 2000)). “In so doing, we

will assume that Congress’s intent is expressed correctly in the ordinary meaning

of the words it employs . . . .” Id. at 1281-82 (quotation omitted). In the case at

bar, two aspects of the statute suggest that Congress intended both “expunged”

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and “set aside” to require that the state procedure completely remove all effects of

the conviction at issue.

First, the plain meaning of “expunge” and “set aside” are nearly equivalent.

Black’s law dictionary defines “expunge” as “[t]o erase or destroy.” Black’s Law

Dictionary (4th ed. 2004). 9 Similarly, Black’s defines “set aside” as “to annul or

vacate.” Id. Importantly for the context of § 921(a)(33), both definitions require

a complete removal of the effects of a conviction.

Second, the structure of § 921(a)(33)(B)(ii) suggests that Congress intended

the terms to be interpreted equivalently. The first portion of the subsection lists

four state actions that would remove firearm disability: expunging, setting aside,

pardoning, or restoring civil rights. See id. The second portion of the

subsection—which we label the “unless” clause—is apparently intended to

parallel and to be coextensive with the first portion of that subsection, yet it

addresses only three state actions: pardoning, expunging, or restoring civil rights.

Id. The absence of the term “set aside” suggests that Congress felt that

“expungement” in the “unless” clause covered both “set asides” and

“expungements.”

ii. Deference to the ATF’s interpretation

9
We regularly rely on Black’s Law Dictionary to determine the plain
meaning of statutory terms. See, e.g., United States v. Pentrack, 428 F.3d 986,
989 (10th Cir. 2005).

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 The ATF’s interpretation of 18 U.S.C. § 921(a)(33) and § 7-13-1501 also

provides some support for our conclusion that the terms expunge and set aside

both require the state procedure to remove completely the effects of a

misdemeanor domestic violence conviction. The ATF’s interpretation is not

entitled to Chevron 10 deference because the ATF did not interpret the statutes

pursuant to an adjudication or a formal rulemaking process. Been v. O.K. Indus.,

Inc., 495 F.3d 1217, 1226 (10th Cir. 2007). Instead, we afford the interpretation

deference only to the extent “the agency’s interpretation is ‘well reasoned’ and

has the ‘power to persuade.’” N.M. Cattle Growers, 248 F.3d at 1281 (quoting

Fristoe v. Thompson, 144 F.3d 627, 631 (10th Cir. 1998)).

In its several letters to the state of Wyoming, the ATF stated that § 7-13-

1501 did not result in “expungement” for the purposes of § 921(a)(33)(B)(ii).

The ATF concluded that because “the conviction records are not destroyed and

remain available to law enforcement agencies for criminal enforcement purposes,

Wyoming Statute 7-13-1501 does not result in ‘expungement’ that removes the

fact of conviction for criminal justice purposes.” While this interpretation only

addresses the term “expunge,” given our determination that Congress intended the

two terms to have equivalent meanings, we find that this interpretation offers

persuasive support in favor of our conclusion that § 921(a)(33)(B)(ii) requires the

10
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837
(1984).

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complete removal of all effects of a prior conviction to constitute either an

expungement or a set aside.

iii. Persuasive authority

A recent decision from the Ninth Circuit also supports our conclusion. See

Jennings v. Mukasey, 511 F.3d 894 (9th Cir. 2007). In Jennings, the petitioner

had previously pleaded nolo contendere to misdemeanor domestic assault in

violation of California law. Id. at 896. The petitioner, however, pursuant to

California Penal Code § 1203.4, had also sought and received a California court

order “Expunging Conviction Nunc Pro Tunc.” Id. at 897. In spite of this court

order, the ATF denied the petitioner’s application to renew his firearm dealer

license renewal application because it concluded that the court order did not

remove the petitioner’s firearms disability. Id.

On review, the Ninth Circuit affirmed this decision. Id. at 899. The court

carefully reviewed § 1203.4 and concluded that the statute contained an important

limitation on its “expungement” relief: the statute permitted “expunged”

convictions to be taken into account in any subsequent prosecution. Id. at 899.

In light of this limitation, the court concluded that § 1203.4 did not “expunge” the

petitioner’s conviction for purposes of § 921(a)(33). Id.

The facts in the case at bar are similar to Jennings. Both statutes limit the

relief they afford to allow the state to take into account prior convictions. We

find the Ninth Circuit’s analysis in Jennings persuasive.

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 Wyoming asserts that reliance on Jennings is misplaced and contends that

another Ninth Circuit case, United States v. Laskie, 258 F.3d 1047 (9th Cir.

2001), supports its position. We disagree and do not find Laskie persuasive

because it is distinguishable from the case at bar. The Laskie court addressed

whether a certificate granted pursuant to Nevada Revised Statute § 176.225

constituted a set aside for purposes of 18 U.S.C. § 921(a)(20). 11 Id. at 1050–52.

The certificate the defendant received stated, in pertinent part: “the previous

finding of Guilty be changed to that of Not Guilty, and the Information herein

dismissed. . . . Defendant . . . is hereby discharged from supervision and released

from all penalties and disabilities resulting from the crime of which he has been

convicted.” Id. at 1050. Section 176.225.3 also provided, however, that the

dismissed conviction still counted as a conviction for Nevada’s felon-in-

possession statute. Id. at 1051.

The Laskie court concluded that the effect of § 176.225.3 was not

dispositive in that case because of the “anti-mousetrapping rule.” Id. at 1049–50.

That rule dictates that “‘[i]f the state sends the felon a piece of paper implying

11
18 U.S.C. § 921(a)(20) defines the term “crime punishable by
imprisonment exceeding one year,” and substantially mirrors the language in
§ 921(a)(33) except as noted in footnote 9, which discusses the placement of a
comma between “expunged” and “or set aside.” See 18 U.S.C. § 921(a)(20)
(“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.”).

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that he is no longer ‘convicted’ and that all civil rights have been restored, a

reservation in a corner of the state’s penal code can not be the basis of a federal

prosecution.’” Jennings, 511 F.3d at 900–01 (quoting Laskie, 258 F.3d at

1049-50 ). As a result of this rule, the court concluded that the defendant’s

conviction had been set aside because the “[d]efendant . . . reasonably can

complain that he was ‘mousetrapped’—that is, led to believe by the state that he

was ‘released from all penalties and disabilities resulting from the crime of which

he has been convicted,’ when, in fact, he was not entitled to possess firearms.”

Laskie, 258 F.3d at 1052.

Unlike Laskie, but similar to Jennings, the Wyoming statute does not

provide certificates which wrongly represent that a defendant is “released from all

penalties and disabilities resulting” from the conviction at issue. Instead, § 7-13-

1501 specifically provides that “expungement granted pursuant to this section

shall only be used for the purposes of restoring firearm rights that have been lost

to persons convicted of misdemeanors. Nothing in this section shall be construed

to affect the enhancement of penalties for second or subsequent convictions of

misdemeanors under the laws of this state.” Wyo. Stat. Ann. § 7-13-1501

(emphasis added). In light of this explicit language and the lack of any

suggestion by Wyoming that the § 7-13-1501 procedure would be similarly

misleading, we conclude that the “anti-mousetrapping” rule from Laskie does not

apply to the instant case.

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 iv. Wyoming’s remaining arguments

Wyoming contends that interpreting expunge and set aside to have

equivalent meanings would wrongly render the phrase “or set aside” as mere

surplusage. The law of this circuit dictates that “we cannot ‘construe a statute in

a way that renders words or phrases meaningless, redundant, or superfluous,’”

United States v. Power Eng’g Co., 303 F.3d 1232, 1238 (10th Cir. 2002) (quoting

United States v. Power Eng’g Co., 125 F. Supp. 2d 1050, 1059 (D. Colo. 2000));

however, in the instant case, our interpretation achieves no such result.

A brief survey of the laws of the various States reveals countless statutes

that use the phrase “set aside” rather than “expungement.” For example,

Michigan statute § 780.621 dictates that “a person who is convicted of not more

than 1 offense may file an application with the convicting court for the entry of an

order setting aside the conviction.” Mich. Comp. Laws § 780.621 (emphasis

added). Similarly, Arizona statute § 13-907 provides that “every person

convicted of a criminal offense, on fulfillment of the conditions of probation or

sentence and discharge by the court, may apply . . . to have the judgment of guilt

set aside.” Ariz. Rev. Stat. § 13-907 (emphasis added); see also Alaska Stat. §

12-55-085(e); Idaho Code § 19-2604(1); N.Y. Exec. Law § 19; Okla. Stat. tit. 10,

§ 7306-2.12; Or. Rev. Stat. § 137.225(1)(a). This use of terminology

demonstrates that our interpretation of § 921(a)(33)(B)(ii) does not render the

phrase “or set aside” mere surplusage because that phrase takes into account the

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variety of state laws that use the term “set aside,” rather than “expunge,” to

accomplish the same result.

Wyoming also contends that the United States Sentencing Guidelines’ use

of the terms expunge and set aside demonstrate that they do not have equivalent

meanings. We disagree. The language of the Act and the Guidelines

demonstrates that the Guidelines offer little persuasive value in the context of the

case at bar because the respective uses of the term set aside are inconsistent.

Comment 10 to § 4A1.2 of the Sentencing Guidelines provides the basis for

Wyoming’s argument. That comment states in full:

A number of jurisdictions have various procedures pursuant to which
previous convictions may be set aside or the defendant may be pardoned
for reasons unrelated to innocence or errors of law, e.g., in order to
restore civil rights or to remove the stigma associated with a criminal
conviction. Sentences resulting from such convictions are to be counted
[for purposes of calculating a defendant’s criminal history category].
However, expunged convictions are not counted.

U.S.S.G. § 4A1.2, cmt.10. Comment 6, which is also relevant to our analysis,

states:

Sentences resulting from convictions that (A) have been reversed or
vacated because of errors of law or because of subsequently discovered
evidence exonerating the defendant, or (B) have been ruled
constitutionally invalid in a prior case are not to be counted [for
purposes of calculating a defendant’s criminal history category].

Id. cmt. 6. Our precedent dictates we must look to the basis of the expungement

or set aside to determine whether such an action constitutes an expungement for

the purposes of the Sentencing Guidelines. United States v. Hines, 133 F.3d

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1360, 1363 (10th Cir. 1998). Thus, echoing the language of comments 6 and 10,

we declared:

Convictions reversed or vacated for reasons related to constitutional
invalidity, innocence, or errors of law are expunged for purposes of the
Guidelines and therefore cannot be included in criminal history
calculations. . . . When convictions are set aside for reasons other than
innocence or errors of law, such as to restore civil rights or remove the
stigma of a criminal conviction, those convictions are counted for
criminal history purposes.

Id. (second emphasis added) (quoting United States v. Cox, 83 F.3d 336, 339–40

(10th Cir. 1996)).

Wyoming correctly highlights the distinction between expunge and set

aside in the context of the Sentencing Guidelines. However, we do not find

Wyoming’s argument persuasive given Congress’s explicit language in

§ 921(a)(33)(B)(ii). As noted above, the Sentencing Guidelines explicitly

distinguish between expungement and set aside on the basis of the state action. If

the state sought to reverse a conviction due to constitutional error or innocence,

the Guidelines construe that action as an expungement. See Hines, 133 F.3d at

1363. On the other hand, if the state reversed the conviction merely to restore

civil rights or remove the stigma of a criminal conviction, the Guidelines construe

that action as a set aside. Id. This dichotomy is plainly at odds with Congress’s

language in § 921(a)(33)(B)(ii), which states: “[a] person shall not be considered

to have been convicted of such an offense for purposes of this chapter if the

conviction has been expunged or set aside, or is an offense for which the person

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has been pardoned or has had civil rights restored.” 18 U.S.C. § 921(a)(33)(B)(ii)

(emphasis added). Congress explicitly included the restoration of civil rights in

§ 921(a)(33), demonstrating that Congress did not intend to apply the same

dichotomy to the context of the Act. Therefore, we do not find the Guidelines’

use of the terms expunge and set aside persuasive for our analysis in the instant

case.

IV.

For the reasons stated above, we conclude that Congress intended the terms

“expunge” and “set aside,” as used in § 921(a)(33)(B)(ii), to require that a state

procedure completely remove the effects of a prior misdemeanor conviction.

Section 7-13-1501 undoubtedly fails to meet that standard, and accordingly, the

district court correctly dismissed Wyoming’s suit. We therefore AFFIRM the

decision of the district court.

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