United States Court of Appeals
For the First Circuit
No. 05-2758
UNITED STATES OF AMERICA,
Appellee,
v.
MARK J. SOUSA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Lipez, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.
Richard N. Foley for appellant.
F. Mark Terison, Senior Litigation Counsel, with whom Paula D.
Silsby, United States Attorney, was on brief, for appellee.
November 15, 2006
HOWARD, Circuit Judge. In 2003, Mark J. Sousa was
arrested in Kittery, Maine, for firing a semi-automatic pistol. He
was then indicted for being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g). The indictment alleged, as the
predicate offense, Sousa's 1977 Massachusetts conviction for
assault with a dangerous weapon entered by the Boston Municipal
Court. See Mass. Gen. Laws ch. 265, § 15B(b) (1975).
Sousa moved to dismiss the indictment on two grounds. He
argued first that, because his 1977 conviction occurred in the
Boston Municipal Court, where a state prison term could not be
imposed, the conviction was a misdemeanor. He also argued
entrapment by estoppel because a Massachusetts state court judge
treated his 1977 conviction as a misdemeanor during a 1990 criminal
proceeding.
The district court was unpersuaded. The court observed
that, while Sousa's 1977 conviction took place in the Boston
Municipal Court, the Massachusetts Superior Court had concurrent
jurisdiction over the offense and could have imposed a state prison
sentence of longer than one year. Thus, the crime was a felony
under Massachusetts law. The court also ruled that there was no
factual basis for Sousa's entrapment by estoppel defense.
After the district court's ruling, Sousa agreed to
conditionally plead guilty, while reserving the right to appeal the
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denial of his motion to dismiss. At the conclusion of a Fed. R.
Crim. P. 11 colloquy, the district court accepted Sousa's plea.
Five months later, Sousa moved to withdraw the plea on
two grounds. First, he claimed that he did not plead guilty
voluntarily because, four days prior to the plea proceeding, he
had become distraught after learning that his wife had been
diagnosed with a terminal illness. Second, since entering the
plea, he had discovered "new evidence" which strengthened his
defenses. This "new evidence" consisted of the fact that the
Somerville Massachusetts Police Department had issued Sousa a
firearm identification permit in 1988. Sousa argued that he
reasonably believed that his receipt of this identification card
meant that his 1977 conviction was a misdemeanor and that he could
legally carry a firearm.
The district court rejected these arguments. The court
ruled, as a factual matter, that Sousa knowingly and voluntarily
pleaded guilty despite having recently learned of his wife's
diagnosis. The court further concluded that Sousa's entrapment by
estoppel defense failed because Sousa had not shown that he
received an affirmative representation that he could carry a
firearm lawfully from a federal official. The court subsequently
sentenced Sousa to 33 months' imprisonment, fined him $5,000, and
placed him on two years' supervised release.
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On appeal, Sousa makes three arguments: (1) the district
court erroneously concluded that his 1977 conviction was a
predicate offense under § 922(g); (2) the court incorrectly
rejected his entrapment-by-estoppel argument; and (3) the court
abused its discretion by denying his motion to withdraw his guilty
plea. We address these arguments in turn.
Under federal law, a person may not possess a firearm
that has traveled in interstate commerce if the person "has been
convicted in any court of a crime punishable by imprisonment for a
term exceeding one year." 18 U.S.C. § 922(g). A "crime punishable
by imprisonment for a term exceeding one year" does not include an
offense which a state classifies as a misdemeanor and is punishable
by a term of imprisonment of two years or less. 18 U.S.C. §
921(a)(20)(B). Moreover, an otherwise qualifying conviction does
not count as a predicate offense if the defendant has had his civil
rights restored by the state, unless the restoration expressly
provides that the person may not ship, transport, possess, or
receive firearms. 18 U.S.C. § 921(a)(20); see generally Caron v.
United States, 524 U.S. 308, 312-17 (1998).
Assault with a dangerous weapon -- the statute underlying
Sousa's 1977 conviction -- subjects a defendant to "imprisonment in
state prison for not more than five years" or "imprisonment in jail
for not more that two and one-half years." Mass. Gen. Laws ch.
265, § 15(B)(b) (1975). Massachusetts law defines a felony as a
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crime that is punishable by confinement in state prison. See Mass.
Gen. Law. ch. 274, § 1. The Boston Municipal Court and the
Massachusetts District Courts may not impose state prison
sentences, see Mass. Gen. Laws ch. 218, § 27; Commonwealth v. Hall,
492 N.E.2d 84, 85 n.2 (Mass. 1986), and a defendant may not be
sentenced to state prison unless proceeded against by grand jury
indictment, see Commonwealth v. Smith, 829 N.E.2d 1090, 1092 (Mass.
2005). Sousa contends that, because his 1977 conviction occurred
in the Boston Municipal Court and he was not indicted, he could not
receive a state prison sentence and thus was convicted of a
misdemeanor.
One reasonably may ask why the classification of the 1977
conviction either as a felony or misdemeanor matters. After all,
as discussed above, a misdemeanor may serve as a predicate offense
under § 922(g) if the crime is punishable by two or more years of
imprisonment. And here, even if Sousa's 1977 conviction was a
misdemeanor, the potential punishment exceeded two years.
The answer lies in the statutory provision stating that
an otherwise qualifying conviction does not count as a predicate
offense if the defendant's civil rights have been restored unless
the restoration provides that the defendant may not ship,
transport, possess, or receive firearms. 18 U.S.C. § 921(a)(20).
Sousa's civil rights probably have been restored by operation of
Massachusetts law for his 1977 conviction. See, e.g., Estrella,
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104 F.3d at 6-7 (explaining that a felon's civil rights are
restored by operation of Massachusetts law seven years after the
conviction and release from confinement). But, if Sousa's 1977
conviction is a felony, Massachusetts imposes continuing
restrictions on his ability to possess a firearm which would make
the 1977 conviction count as a predicate offense under § 922(g).
See United States v. Blodgett, 130 F.3d 1, 3 (1st Cir. 1997);
Estrella, 104 F.3d at 8.
We look to Commonwealth law to determine whether the 1977
conviction is a felony. See 18 U.S.C. § 921(a)(20). And
Massachusetts does regard the conviction as a felony. In Smith,
the defendant was charged with a crime that carried the possibility
of a state prison sentence. 891 N.E.2d at 1091. But the defendant
was tried in state district court and was not indicted. Id. He
argued therefore that he was only convicted of a misdemeanor
because the district court could not have sentenced him to state
prison. Id. The Massachusetts Supreme Judicial Court has rejected
this argument, reasoning that "the issue is how the crime itself
may potentially be punished, not how a particular defendant before
a particular court may be punished." Id. at 1092 n.1 (emphasis
supplied). Because the defendant's offense was punishable by a
state prison sentence, the crime was a felony. Id.
So too here. Because Sousa was not indicted and was
prosecuted in the Boston Municipal Court, he could not have been
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sentenced to state prison for his 1977 conviction. Nevertheless,
assault with a dangerous weapon carries the potential for a state
prison term, and therefore Sousa was convicted of a felony. See 8
Op. Mass. Att'y Gen. 342, 343 (1927) (stating that the fact that
the defendant was prosecuted in the district court "does not affect
the nature of the defendant's crime and make an offense which is
defined by statute as a felony a misdemeanor"). Accordingly, the
district court correctly ruled that Sousa's 1977 conviction was a
predicate offense under § 922(g).
We turn next to Sousa's argument that the district court
should have dismissed the indictment because he established
entrapment by estoppel as a matter of law. We review this argument
de novo. United States v. Pardue, 385 F.3d 101, 108 (1st Cir.
2004).
"A defense of entrapment by estoppel [requires the
defendant] to show that he had been told by a government official
that his behavior was legal and that he reasonably relied on that
advice." United States v. Bunnell, 280 F.3d 46, 49 (1st Cir. 2002).
Sousa claims that the Somerville Massachusetts Police Department
"told him" that possessing a firearm was legal by issuing him a
firearm identification card.1
1
On appeal, Sousa does not renew his argument that the state
court judge's treatment of his 1977 conviction during the 1990
proceeding supports his entrapment-by-estoppel defense.
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We rejected a nearly identical argument in United States
v. Caron, 64 F.3d 713, 714-17 (1st Cir. 1995). A successful
entrapment by estoppel defense generally requires that the
misleading statement come from an official representing the
sovereign bringing the prosecution, i.e., a federal official. Id.
at 716-17. We did hold open the possibility in Caron that
entrapment by estoppel could be a defense to a federal crime where
a state official affirmatively provides the defendant with
misleading advice on the requirements of federal law. Id. at 717.
But Sousa does not claim that a Massachusetts official affirmatively
told him that he could legally possess a firearm under federal law.
The district court therefore correctly rejected Sousa's entrapment
by estoppel defense.
Finally, we consider Sousa's claim that he should have
been permitted to withdraw his guilty plea. Where, as here, a
defendant moves to withdraw a guilty plea before sentencing, we
review the denial of the motion for an abuse of discretion.
See United States v. Isom, 85 F.3d 831, 834 (1st Cir. 1996). A
defendant does not have an automatic right to withdraw a guilty
plea, see United States v. Marrero-Rivera, 124 F.3d 342, 347 (1st
Cir. 1997), but the court should permit a motion to withdraw if the
defendant offers "a fair and just reason," Fed. R Crim. P.
11(d)(2)(B). Among the relevant factors are whether the plea was
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voluntary, intelligent, knowing, and complied with Rule 11; the
force of the reasons offered by the defendant; whether there is a
serious claim of actual innocence; the timing of the motion; and any
countervailing prejudice to the government if the defendant is
allowed to withdraw his plea. See United States v. Padilla-Galarza,
351 F.3d 594, 597 (1st Cir. 2003).
Sousa contends that he should have been allowed to
withdraw his guilty plea because he learned four days before
entering the plea that his wife had been diagnosed with a terminal
illness. There is no dispute that the district court provided Sousa
with an appropriate Rule 11 colloquy, and that during the colloquy
Sousa acknowledged that he was pleading guilty voluntarily and had
committed the charged offense. Although we do not minimize the
impact on Sousa of the distressing news about his wife's illness,
Sousa had four days to consider the impact of his wife's condition
and its relationship to his legal situation prior to making these
statements. Sousa has provided us with no basis for upsetting the
court's conclusion that his concern for his wife's health did not
impair his ability to make a knowing and voluntary choice on the day
of his plea. Cf. United States v. Aker, 181 F.3d 167, 171 (1st Cir.
1999) (concluding that a defendant was not entitled to withdraw a
guilty plea because of depression over his wife's death because
there was no proof that the depression prevented the defendant from
voluntarily pleading guilty).
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Sousa's five month delay in moving to withdraw his plea
also counsels against permitting withdrawal. E.g., United States
v. Pagan-Ortega, 372 F.3d 22, 31 (1st Cir. 2004) (stating that two-
month lag between plea and motion to withdraw places "it well within
the area of vulnerability because of untimeliness"); United States
v. Pellerito, 878 F.2d 1535, 1541 (1st Cir. 1989) (ruling that eight
week delay between plea and motion to withdraw weighed against
defendant). Moreover, Sousa has not made a serious claim of actual
innocence. For these reasons, the district court acted within its
discretion by denying Sousa's motion to withdraw his guilty plea.
Affirmed.
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