UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5269
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JEFFREY ALLEN BRADY,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas David
Schroeder, District Judge. (1:09-cr-00368-TDS-1)
Submitted: June 21, 2011 Decided: July 13, 2011
Before DUNCAN, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr.,
Assistant Federal Public Defender, Greensboro, North Carolina,
Elizabeth A. Flagg, Research & Writing Attorney, Winston-Salem,
North Carolina, for Appellant. Ripley Rand, United States
Attorney, Michael F. Joseph, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeffrey Allen Brady pled guilty without a plea
agreement to one count of possession of a firearm by a convicted
felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2006).
The district court concluded that Brady had at least three prior
“violent felony” or “serious drug offense” convictions (“the
1980s convictions”) * and that Brady was thus an armed career
criminal under the Armed Career Criminal Act (“ACCA”), see 18
U.S.C. § 924(e), and U.S. Sentencing Guidelines Manual (“USSG”)
§ 4B1.4 (2009). The court sentenced Brady to 180 months’
imprisonment, the statutory minimum sentence required by the
ACCA. Brady challenges this sentence on appeal, arguing that
the district court erred in sentencing him as an armed career
criminal because the 1980s convictions do not qualify as ACCA
predicates. Brady also argues that the district court committed
plain error in sentencing him as an armed career criminal
because the indictment did not charge a violation of the ACCA
and he did not admit to those facts necessary to justify an ACCA
*
Specifically, Brady had the following prior convictions at
the time of his arrest in 2008: (1) a January 1984 conviction
for selling and delivering methylenedioxyamphetamine; (2)
January 1984 convictions for selling and delivering LSD; and (3)
an August 1986 conviction for assault with a deadly weapon
inflicting serious injury.
2
sentence. We disagree, and, for the reasons that follow, we
affirm.
I.
Section 4B1.4 of the Sentencing Guidelines provides
for the imposition of an enhanced sentence on any person who is
an armed career criminal, as defined by 18 U.S.C. § 924(e)(1).
USSG § 4B1.4(a) & cmt. n.1. Section 924(e)(1) of Title 18 is
applicable to any person who violates 18 U.S.C. § 922(g) and has
three or more previous “violent felony” or “serious drug
offense” convictions. As this court has explained, such
predicate convictions must be “of the type referred to in
[18 U.S.C.] § 922(g)(1).” United States v. Clark, 993 F.2d 402,
403 (4th Cir. 1993). Section 922(g)(1) of Title 18 applies to
convictions for crimes “punishable by imprisonment for a term
exceeding one year.” However, as this court recognized in
United States v. O’Neal, 180 F.3d 115, 119 (4th Cir. 1999),
there is “an important exception.” Section 921(a)(20) of Title
18 excludes from qualification as a crime “punishable by
imprisonment for a term exceeding one year”:
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.
3
18 U.S.C. § 921(a)(20)(2006).
In determining whether state law provides that a
defendant’s civil rights have been restored, we “look to the
whole of state law.” Clark, 993 F.2d at 403 (internal quotation
marks omitted). “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) (internal quotation marks omitted).
North Carolina law restores to convicted felons some
civil rights upon release from imprisonment. See N.C. Gen.
Stat. § 13-1(1) (2009). Brady was released from prison after
serving imprisonment terms for the 1980s convictions on March
24, 1990. Upon his release, Brady regained his “rights of
citizenship,” including his rights to vote, hold office, and
serve on a jury. See N.C. Gen. Stat. § 13-1(1); United
States v. McLean, 904 F.2d 216, 217 n.1 (4th Cir. 1990).
Brady, however, did not immediately regain the right
to possess a firearm at the time of his release. At that time,
North Carolina’s Felony Firearms Act (“NCFFA”), N.C. Gen. Stat.
§ 14-415.1(a), provided that convicted felons could possess long
guns anywhere and firearms in their home or lawful place of
business and regained the right to possess all firearms five
years after release from prison. See O’Neal, 180 F.3d at 120-
4
21. Effective December 1, 1995, North Carolina amended the
NCFFA to replace the five-year ban with a permanent ban on a
convicted felon’s right to possess certain firearms; the 1995
amendment, however, did not alter the provision permitting a
convicted felon to possess a long gun or a firearm in his home
or lawful place of business. See United States v. Farrow,
364 F.3d 551, 554 (4th Cir. 2004). Effective December 1, 2004,
North Carolina again amended the NCFFA, this time prohibiting
convicted felons from possessing any and all firearms. N.C.
Gen. Stat. § 14-415.1(a) (2004).
In Brady’s view, the district court erred in
sentencing him as an armed career criminal because, five years
after he was discharged from the custody of the North Carolina
Department of Correction, his civil rights were restored as to
each of the 1980s convictions and, as a result, such convictions
do not qualify as ACCA predicates. Although acknowledging that
North Carolina amended the NCFFA in 2004 to prohibit convicted
felons from possessing firearms under any circumstances, Brady
contends that the 2004 amendment cannot deprive him of his
fundamental right to possess a firearm in his residence,
see McDonald v. City of Chicago, 130 S. Ct. 3020, 3050 (2010);
District of Columbia v. Heller, 554 U.S. 570, 635-36 (2008),
without violating the Ex Post Facto Clause of the Constitution.
5
A.
Brady correctly notes that, by operation of law, his
right to possess any and all firearms was fully restored to him
under North Carolina law on March 24, 1995, five years after his
release from prison after he completed the prison sentences for
the 1980s convictions. See O’Neal, 180 F.3d at 121 (applying
the law in effect at the time of the defendant’s discharge from
prison to determine the right of the defendant to possess
firearms). However, the 2004 amendment to the NCFFA
retroactively stripped Brady of this previously restored right.
See N.C. Gen. Stat. § 14-415.1(a) (2004); Britt v. State,
649 S.E.2d 402, 406 (N.C. Ct. App. 2007), rev’d on other grounds
by Britt v. State, 681 S.E.2d 320, 323 (N.C. 2009).
Whether the 2004 amendment to the NCFFA is ex post
facto as applied to Brady is a question of law we review de
novo. Farrow, 364 F.3d at 554. The Ex Post Facto Clause of the
Constitution prohibits laws that “retroactively alter the
definition of crimes or increase the punishment for criminal
acts.” Collins v. Youngblood, 497 U.S. 37, 43 (1990). The
Supreme Court has defined the latter part of this rule as
prohibiting laws that retroactively “increase[] the penalty by
which a crime is punishable.” Ca. Dep’t of Corr. v. Morales,
514 U.S. 499, 506 n.3 (1995). In O’Neal, this court observed
that:
6
“Punishment” and “penalty” are constitutional terms of
art, defined in contra distinction to laws that are
“civil” or involve “regulation of a present
situation.” While laws that retroactively increase
“punishment” or impose a “penalty” violate the Ex Post
Facto Clause, retroactive civil or regulatory ones do
not.
O’Neal, 180 F.3d at 121-22 (internal citations omitted).
In determining whether a law is punitive or regulatory
in nature, courts apply a two-part test. A court should first
ask “whether the legislature's intent, as discerned from the
structure and design of the statute along with any declared
legislative intent, was to impose a punishment or merely to
enact a civil or regulatory law.” Id. at 122. Second, a court
should determine whether the effect of the law is “so punitive
in fact that the law may not legitimately be viewed as civil in
nature.” Id. (internal quotation marks omitted). The analysis
under this second part of the test “focuses upon whether the
sanction or disability that the law imposes may rationally be
connected to the legislature’s non-punitive intent, or rather
appears excessive in light of that intent.” Id. (internal
quotation marks omitted).
In O’Neal, this court rejected the argument that
retroactive application of the former five-year ban on handgun
possession codified in the version of the NCFFA in effect in
1983 was punitive and therefore unconstitutional under the Ex
Post Facto Clause. With regard to the first prong of the ex
7
post facto analysis, the court relied on several North Carolina
decisions rejecting ex post facto challenges to earlier versions
of section 14-415.1. O’Neal, 180 F.3d at 123. In view of these
decisions, this court concluded 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. In addressing the second part of the
analysis, the court concluded that the effect of the five-year
ban was not “so punitive in fact” that the law should be
considered punitive in nature and that the probationary period
provided an additional civil disability in an effort to protect
the public. Id. at 124.
In Farrow, this court rejected a similar argument
challenging as ex post facto the retroactive application of the
1995 amendment to the NCFFA. In finding no violation of the Ex
Post Facto Clause, this court cited O’Neal as controlling.
Farrow, 364 F.3d at 555. Additionally, the Farrow court
concluded that the indefinite ban in the 1995 amendment was
“rationally connected to the state’s legitimate interest in
protecting the public.” Id.
With respect to the 2004 amendment, recent decisions
from the Court of Appeals of North Carolina (“CANC”) and the
Supreme Court of North Carolina (“SCNC”) make clear that the
8
intent of the North Carolina legislature was to enact a civil
disability to protect the public and that this disability is
rationally related to that non-punitive intent.
In 2007, the CANC rejected the claim that retroactive
application of the 2004 amendment to the NCFFA was ex post
facto. Britt, 649 S.E.2d at 406-07 (“Britt I”). Although the
SCNC later reversed Britt I, it did so on alternate grounds,
leaving intact the ex post facto analysis performed by the CANC.
Britt, 681 S.E.2d at 322-23 (“Britt II”). In 2010, the SCNC
explicitly rejected a claim that the 2004 amendment to the NCFFA
was an unconstitutional ex post facto law. State v. Whitaker,
700 S.E.2d 215, 220 (N.C. 2010). Specifically, the court
concluded that the ban was not punitive in nature since its
intent was to protect the public from future violent actions of
those considered dangerous or who had demonstrated a heightened
disregard for the law. Id. at 218. The SCNC noted support for
its conclusion in the Heller decision, in which the Supreme
Court of the United States described bans on possession of
firearms by convicted felons as regulatory action. Id. at 218-
19 (citing Heller, 554 U.S. at 627 & n.26 (characterizing long-
standing prohibitions such as the ban on possession of firearms
by convicted felons as “presumptively lawful regulatory
measures”)). The SCNC also concluded that the 2004 amendment
was rationally connected to the non-punitive purpose of
9
protecting public safety, id. at 219, and was not excessive in
light of that purpose. Id.
Taken together, then, O’Neal, Farrow, Britt I, Britt
II, and Whitaker uphold as constitutional the proposition that
the NCFFA, as amended in 2004, is not an unconstitutional ex
post facto law. The law may therefore be applied to Brady to
retroactively strip him of his previously restored right to
possess firearms without violating the Ex Post Facto Clause.
B.
Brady has not suggested in his appellate briefs that
such a stripping of a restored right to possess firearms would
not effectively revive a previously negated predicate conviction
for purposes of §§ 922(g)(1) and 924(e), and we conclude that
the 1980s convictions were available as predicate convictions
for purposes of §§ 922(g)(1) and 924(e). See Melvin v. United
States, 78 F.3d 327, 330 (7th Cir. 1996). Accordingly, we
reject Brady’s argument that the district court erred in
sentencing him as an armed career criminal under USSG § 4B1.4
and 18 U.S.C. § 924(e).
II.
Brady also argues that the district court committed
plain error in sentencing him as an armed career criminal
10
because the indictment did not charge a violation of the ACCA
and he did not admit to those facts necessary to justify an ACCA
sentence. As Brady correctly acknowledges, however, this claim
is foreclosed by controlling Circuit precedent. See United
States v. Thompson, 421 F.3d 278, 284 n.4 (4th Cir. 2005)
(holding that an indictment need not reference or list the prior
convictions used to enhance a sentence); United States v. Cheek,
415 F.3d 349, 352-54 (4th Cir. 2005) (holding that prior
convictions used as the basis for an armed career criminal
sentence need not be charged in the indictment or proven beyond
a reasonable doubt).
III.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
11