United States v. Leuschen

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit

1-21-2005

USA v. Leuschen
Precedential or Non-Precedential: Precedential

Docket No. 04-1142

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 PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________

No. 04-1142
____________

UNITED STATES OF AMERICA

v.

DOUGLAS B. LEUSCHEN,

Appellant
____________

Appeal from the United States District Court
For the Western District of Pennsylvania
D.C. No.: 02-cr-00163-1
District Judge: Honorable Maurice B. Cohill, Jr.
____________

Argued: December 14, 2004

Before: NYGAARD, ROSENN, and BECKER, Circuit
Judges.

(Filed: January 21, 2005)
Christine A. Sanner (Argued)
Bonnie R. Schlueter
Office of United States Attorney
700 Grant Street, Suite 400
Pittsburgh, PA 15219

Counsel for Appellant

Karen S. Gerlach (Argued)
Office of Federal Public Defender
1001 Liberty Avenue
1450 Liberty Center
Pittsburgh, PA 15222

Counsel for Appellee
____________

OPINION OF THE COURT
____________

ROSENN, Circuit Judge.

Although the appellant in this appeal challenges the
constitutionality of the federal felon in possession of a gun
law, 18 U.S.C. § 922(g)(1), the most serious aspect of this
appeal is the question whether his extant prior conviction, if
flawed, may constitute the predicate conviction for his
subsequent prosecution under § 922(g)(1). This question is
one of first impression in this circuit.

Following a bench trial in the United States District

2
Court for the Western District of Pennsylvania, appellant
Douglas B. Leuschen (“Leuschen”) was found guilty of one
count of possessing firearms by a convicted felon, in violation
of 18 U.S.C. § 922(g)(1). He was sentenced to sixty-three
months’ imprisonment to be followed by three years’
supervised release. He asserts that his 1989 conviction under
Pennsylvania law, on which the Government relied in
securing his conviction under § 922(g)(1), is invalid, because
his counsel failed to recognize that the state law had been
amended before his trial and afforded him an unassailable
defense to the charge on which he was convicted. Thus, he
contends that his state conviction cannot satisfy § 922(g)(1)’s
predicate conviction requirement. Leuschen also asserts that,
with respect to his 1989 state conviction, he retained his rights
under Pennsylvania law to vote and hold public office, in
addition to the right to possess firearms. He argues that he
therefore qualifies for the “restoration of civil rights”
exception to § 922(g)(1)’s prohibition on firearm possession,
provided by 18 U.S.C. § 921(a)(20). Lastly, Leuschen
challenges § 922(g)(1)’s constitutionality under the
Commerce Clause, U.S. Const. art. I, § 8, cl. 3. For the
following reasons, we will affirm the District Court’s
judgment of conviction and sentence.

I.

In July 2002, Leuschen, a resident of Pennsylvania,
spoke with a local law enforcement officer about his legal and
financial troubles, and complained about what he perceived to
be a corrupt and unjust legal system. During this
conversation, Leuschen repeatedly referred to Homeland

3
Security Secretary Tom Ridge, and conveyed his belief that he
had little choice but to “take his gun and go to war against the
people whom caused him such injustice for many years.”
(App. 46.) The officer reported Leuschen’s remarks to the
Federal Bureau of Investigation. Viewed in light of his
history of firearms violations and his “long-term fixation” on
Secretary Ridge, Leuschen’s statements prompted federal
Secret Service agents to obtain a warrant to search his home.
Inside his home, federal agents uncovered six firearms and
several rounds of ammunition. All of the firearms were
manufactured outside of Pennsylvania.

The Government charged Leuschen with being a felon
in possession of firearms, in violation of 18 U.S.C. §
922(g)(1), based on his 1989 conviction in the Court of
Common Pleas of Erie County, Pennsylvania, for carrying a
concealed 9 millimeter semiautomatic pistol without a license.
See 18 Pa. Cons. Stat. § 6106(a). In August 2002, a grand
jury in the United States District Court for the Western
District of Pennsylvania indicted Leuschen on one count of
violating § 922(g)(1).

Leuschen moved to dismiss the indictment on the
ground that § 922(g)(1) is unconstitutional under the
Commerce Clause of the federal Constitution. Applying
United States v. Singletary, 268 F.3d 196 (3d Cir. 2001), the
District Court, Cohill, J., appropriately denied his motion. By
way of a second pretrial motion to dismiss, Leuschen argued
that he was not a felon for § 922(g)(1) purposes, because his
1989 state court conviction was invalid, and because he
qualified for the “restoration of civil rights” defense under §

4
921(a)(20). The District Court also denied this motion. It
held that Leuschen could not collaterally attack his predicate
felony conviction, and that he did not qualify for the
restoration of civil rights defense, because his right to sit on a
jury had not been restored under Pennsylvania law.

After a brief trial, the District Court found Leuschen
guilty. He timely appealed.

II.

Because Leuschen’s appeal poses legal questions of
statutory interpretation, our review is plenary. Singletary, 268
F.3d at 198-99; United States v. Cross, 128 F.3d 145, 147 (3d
Cir. 1997).

Section 922(g)(1) prohibits firearm possession by
anyone who has “been convicted in any court of, a crime
punishable by imprisonment for a term exceeding one year.” §
922(g)(1). Leuschen contends that the Government cannot
rely on his 1989 state conviction to satisfy § 922(g)(1)’s
predicate conviction requirement, because his defense
counsel, the prosecutor, and the trial judge all failed to
recognize that state law had been amended prior to his trial.
The amendment, he claims, would have provided him with a
defense which would have led to his acquittal. This
argument, however, is foreclosed by Lewis v. United States,
445 U.S. 55 (1980).

Lewis involved a prosecution under 18 U.S.C. §
1202(a), a predecessor to § 922(g), which prohibited firearm

5
possession by convicted felons.1 In Lewis, the defendant’s
prior felony conviction was indisputably obtained in violation
of his right to counsel. However, the Supreme Court rejected
his attempt to challenge the extant felony conviction in
defense to his prosecution under § 1202(a). Analyzing the
statutory language and history of § 1202(a), the Court held
that its sweeping prohibition on firearm possession was
triggered by “the fact of a felony conviction,” not the validity
of a felony conviction. Lewis, 445 U.S. at 60. Further, the
Court observed that the statutory scheme afforded convicted
felons various means of vacating the conviction or lifting the
firearm disability in an appropriate proceeding in the state
courts “before obtaining a firearm. . . .” Id. at 64. Thus, the
Court concluded that the firearm disability applied “despite

1
Section 1202(a) provided in relevant part:

Any person who –
(1) has been convicted by a court of the
United States or of a State or any political
subdivision thereof of a felony . . . and
who receives, possesses, or transports in
commerce or affecting commerce . . . any
firearm shall be fined not more than
$10,000 or imprisoned for not more than
two years, or both.

18 U.S.C. 1202(a)(1), repealed by Firearms Owners’ Protection
Act of 1986, 99 Pub. L. 308, § 104(b), 100 Stat. 449, 459; see
Lewis, 445 U.S. at 56 n.1.

6
the fact that the predicate felony may be subject to collateral
attack on constitutional grounds.” Id. at 65.

We hold that Lewis precludes a defendant’s collateral
attack on a prior conviction in defense of a prosecution under
§ 922(g)(1). See Burrell v. United States, 384 F.3d 22, 27-28
(2d Cir. 2004) (“[T]he determinate factor is defendant’s
criminal record at the time of the charged possession. . . .
Thus, a § 922(g)(1) conviction is ‘not subject to attack on the
ground that a predicate conviction is subsequently reversed,
vacated or modified.’”) (citing Lewis, 445 U.S. at 64); United
States v. Marks, 379 F.3d 1114, 1118-19 (9th Cir. 2004)
(Under Lewis, “it is the fact of a felony conviction, with no
intervening vacatur or other affirmative official action by the
state to nullify the conviction, that triggers the firearms
disability.”).2

Section 922(g)(1)’s broad language, similar to that of §

2
Other Courts of Appeals that have considered this question
support our result. See, e.g., United States v. Snyder, 235 F.3d
42, 53 (1st Cir. 2000); United States v. Steverson, 230 F.3d 221,
225 (6th Cir. 2000); United States v. Kahoe, 134 F.3d 1230,
1235 (4th Cir. 1998); United States v. Lee, 72 F.3d 55, 58 (7th
Cir. 1995). Further, other Courts of Appeals have agreed, in
dicta, that Lewis applies to § 922(g)(1), and have also applied
Lewis’s holding to other subsections of § 922(g). See United
States v. Hicks, 389 F.3d 514, 535 (5th Cir. 2004); United States
v. Dorsch, 363 F.3d 784, 787 (8th Cir. 2004); United States v.
Cisneros-Cabrera, 110 F.3d 746, 748 (10th Cir. 1997).

7
1202(a)(1)’s, contains no modifiers or restrictions to suggest
that the firearm disability applies to only those persons with
valid convictions. Rather, the only qualification imposed by §
922(g)(1) is that the predicate conviction carry a potential
sentence of greater than one year of imprisonment. Further,
the statutory framework contemplates that a “defendant clear
his status before obtaining a firearm,” Lewis, 445 U.S. at 64,
because § 921(a)(20) provides that, a “conviction which has
been expunged, or set aside or for which a person has been
pardoned or has had civil rights restored” does not impose a
firearm disability. Thus, like its predecessor, § 922(g)(1)
prohibits a felon from possessing a firearm, although the
predicate conviction is susceptible to a collateral attack. See
Lewis, 445 U.S. at 65.

Leuschen’s reliance on Custis v. United States, 511
U.S. 485 (1994), is misplaced. In Custis, the defendant was
convicted under § 922(g)(1), and sought to collaterally
challenge the validity of his previous state convictions only
when the government sought to enhance his sentence under
the Armed Career Criminal Act of 1984 (“ACCA”), 18
U.S.C. § 924(e). 3 Custis, 511 U.S. at 487. Because the

3
In relevant part, the ACCA provides:

In the case of a person who violates
section 922(g) of this title and has
three previous convictions by any
court referred to in section
922(g)(1) of this title for a violent

8
ACCA, like § 922(g)(1), “focuses on the fact of the
conviction and nothing suggests that the prior final conviction
may be subject to collateral attack for potential constitutional
errors before it may be counted,” id. at 491, the Supreme
Court held that “prior convictions used for sentence
enhancement purposes under § 924(e) are not subject to
collateral attack in the sentence proceeding.” Id. at 492. The
Court relied on Lewis in support of this conclusion. Id. at
492-93. However, it carved out a narrow exception to the rule
against collateral attacks, for prior convictions obtained in a
complete absence of counsel. Id. at 496. Unlike other
constitutional errors, the Court explained, a complete
deprivation of counsel could be discerned easily by looking to
“the judgment roll itself, or from an accompanying minute
order.” Id.

felony or a serious drug offense, or
both, committed on occasions
different from one another, such
person shall be fined not more than
$25,000 and imprisoned not less
t h a n fifte en yea r s , a n d ,
n o t w i t h st a n d i n g a n y o t h e r
provision of law, the court shall not
suspend the sentence of, or grant a
probationary sentence to, such
person with respe ct to the
conviction under section 922(g).

18 U.S.C. § 924(e)(1).

9
 In light of the narrow window that Custis opens for
collateral challenges to predicate felonies, it is little wonder
that Leuschen couches his attack on his 1989 Pennsylvania
conviction in terms of a violation of his right to counsel. He
baldly asserts that an amendment to state law effective after
his arrest, but before his trial, would have been retroactive to
his case, and led to his acquittal. He contends that his trial
counsel, the prosecutor, and the trial judge all failed to
recognize this legal development, and this error was
tantamount to a total deprivation of counsel. Custis, however,
has no application whatsoever to Leuschen’s claims. It only
applies to sentencing proceedings under § 924(e). Moreover,
a review of his 1989 trial transcript quickly reveals that
Leuschen was represented by counsel.4

Section 922(g)(1) prohibited Leuschen from
possessing a firearm on account of his 1989 state conviction,
irrespective of the validity of that conviction. Accordingly,
we hold that the defendant cannot collaterally attack his

4
Leuschen alleges that he would have been acquitted under
a 1988 amendment to 18 Pa. Cons. Stat. § 6106(b)(4), which
provided a target practice exception to the prohibition on
carrying unlicensed, concealed firearms. Undertaking a review
of his claim would require analysis of the trial transcripts and
various state laws, which involves a level of effort and delay
that the Custis Court sought to prevent by limiting the exception
to the rule against collateral attacks to only those convictions
obtained in the absence of counsel. See Custis, 511 U.S. at 496-
97.

10
predicate conviction in defense of his prosecution under §
922(g)(1).

III.

Title 18 U.S.C. § 921(a)(20) lifts a convict’s firearms
disability if the convict

“has had civil rights restored” with respect to the conviction,
unless the “restoration of civil rights expressly provides that
the person may not ship, transport, possess, or receive
firearms.” § 921(a)(20); Beecham v. United States, 511 U.S.
368, 372 (1994). Leuschen contends that he qualifies for this
restoration of civil rights defense to § 922(g)(1). He asserts
that he qualifies because his civil rights under Pennsylvania
law have remained substantially intact after his 1989
conviction, and Pennsylvania law imposes no restrictions on
his firearms rights. The Government counters that, under
United States v. Essig, 10 F.3d 968 (3d Cir. 1993), a convict’s
federal firearms rights are restored only if the convicting
jurisdiction has restored all of the convict’s core civil rights.

In Essig, we acknowledged that § 921(a)(20) does not
define “civil rights.” We adopted the definition employed by
our sister Courts of Appeals, and concluded that “civil rights”
encompasses the rights to vote, to hold public office, and to
sit on a jury. Essig, 10 F.3d at 975 (quoting United States v.
Thomas, 991 F.2d 206, 211 (5th Cir. 1993), in turn quoting
United States v. Cassidy, 899 F.2d 543, 549 (6th Cir. 1990),
and citing United States v. Dahms, 938 F.2d 131, 133 (9th
Cir. 1991)). The Supreme Court has implicitly accepted this

11
view. See Caron v. United States, 524 U.S. 308, 316 (1998)
(discussing § 921(a)(20)’s requirement that federal courts
apply the convicting jurisdiction’s law to determine whether
civil rights have been restored; “Restoration of the right to
vote, the right to hold office, and the right to sit on a jury
turns on so many complexities and nuances that state law is
the most convenient source for definition.”). Essig presented
this Court with the issue of whether the defendant’s “retention
of two of the three core civil rights to which § 921(a)(20)
refers, the right to vote and hold pubic office, is a restoration
of civil rights within the meaning of the statute.” Essig, 10
F.3d at 975. We held that it is not. Once the convict loses a
core civil right, § 921(a)(20) requires the restoration of that
right. Id. at 976.

Leuschen acknowledges that his 1989 Pennsylvania
conviction stripped him of his right to sit on a jury, see 42 Pa.
Cons. Stat. § 4502(a)(3), and that Pennsylvania law has not
restored this right. 5 Yet, he claims that § 921(a)(20)
nevertheless entitles him to the restoration of civil rights
defense, because Pennsylvania law imposes no restrictions on
his firearms rights. He unsuccessfully attempts to distinguish
Essig on the ground that it did not contemplate the impact of a
defendant’s ability to possess firearms in combination with
his retention of two of the three core civil rights.

5
Leuschen provides no support for his contention that he has
retained his rights to vote and hold public office under
Pennsylvania law. Because this issue bears no impact on the
outcome of his appeal, we will assume that he is correct.

12
 The absence of firearms restrictions, however,
becomes relevant only if the convict’s core civil rights have
been restored. The defense under § 921(a)(20) involves two
distinct steps. First, the defendant must demonstrate a
restoration of core civil rights. As this Court and others have
held, this includes the right to sit on a jury. Essig, 10 F.3d at
975; see, e.g., Dahms, 938 F.2d at 133. Only then does the
court consider whether the restoration is encumbered by any
firearm restrictions. If the defendant “has not ‘had civil rights
restored,’ it simply does not matter what the state law
provides concerning possession of firearms.” Thomas, 991
F.2d at 215; see also Caron, 524 U.S. at 313 (courts’ analysis
of state law restrictions on the defendant’s firearms rights
occurred after the defendant demonstrated a restoration of his
civil rights).

Because Leuschen cannot demonstrate that his core
civil rights have been fully restored under Pennsylvania law,
he cannot avail himself of § 921(a)(20)’s restoration of civil
rights defense. Leuschen’s rights under Pennsylvania law to
possess firearms are therefore irrelevant. 6

6
Leuschen argues that 18 Pa. Cons. Stat. § 6105, a statute
which prohibits firearm possession for persons convicted of
certain crimes, does not prohibit his possession of firearms. The
Government, however, argues that § 6109 prevents Leuschen
from obtaining a license to carry a concealed firearm, on
account of his 1989 conviction. Such a restriction on Leuschen’s
firearm rights could possibly disqualify him for the restoration
of civil rights defense under § 921(a)(20). See Caron, 524 U.S.

13
 IV.

Leuschen argues that his conviction must be vacated
because § 922(g)(1) is unconstitutional under the Commerce
Clause of the federal Constitution. The Commerce Clause
empowers Congress “[t]o regulate commerce with foreign
Nations, and among the several States . . . .” U.S. Const. art. I,
§ 8, cl. 3. In Singletary, this Court examined § 922(g)(1)’s
viability in light of a triad of Commerce Clause cases in
which the Supreme Court narrowed the scope of Congress’
regulatory powers: United States v. Lopez, 514 U.S. 549
(1995); United States v. Morrison, 529 U.S. 598 (2000); and
Jones v. United States, 529 U.S. 848 (2000). See Singletary,
268 F.3d at 199-204. We upheld § 922(g)(1), holding that its
jurisdictional element places it within the ambit of Congress’
Commerce Clause powers. Id. at 204; see also United States
v. Gateward, 84 F.3d 670, 672 (3d Cir. 1996).

Leuschen acknowledges that Singletary is controlling,
and admits that he has raised the issue of § 922(g)(1)’s
constitutionality “for the sole purpose of preserving it for
potential en banc or Supreme Court review.” (Appellant Br.
at 3.). This Court has previously declined the opportunity for
en banc review of facial challenges to the constitutionality of
§ 922(g)(1). See, e.g., United States v. Coward, 296 F.3d

at 315-16. Although it is unclear whether Leuschen’s firearm
rights are truly unencumbered under Pennsylvania law, we need
not resolve this issue in light of our holding that Leuschen has
failed to establish a restoration of his right to sit on a jury.

14
176, 183 (3d Cir. 2002); Singletary, 268 F.3d at 198 n.1 &
204-05. There is no basis for changing course with
Leuschen’s case. Thus, we adhere to Singletary, and reject
Leuschen’s facial attack on § 922(g)(1)’s constitutionality.

Furthermore, evidence that Leuschen’s firearms were
all manufactured outside Pennsylvania provides the requisite
nexus to, and proof that the firearms traveled in, interstate
commerce. See, e.g., United States v. Shambry, - - F.3d - -,
2004 WL 2952819, at *4 (3d Cir. Dec. 22, 2004); Singletary,
268 F.3d at 200 (discussing Scarborough v. United States,
431 U.S. 563 (1977)). Thus, Leuschen’s claim that §
922(g)(1) was unconstitutionally applied to his case is without
merit.

V.

For the foregoing reasons, the judgment and sentence
of the District Court will be affirmed.

15