FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 04-10363
Plaintiff-Appellant,
v. D.C. No.
CR-03-00908-SMM
RAYMOND JAYSON SIMPSON,
OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, District Judge, Presiding
Argued and Submitted
June 17, 2005—San Francisco, California
Filed March 27, 2006
Before: Richard C. Tallman, Jay S. Bybee, and
Carlos T. Bea, Circuit Judges.
Per Curiam Opinion
3289
UNITED STATES v. SIMPSON 3291
COUNSEL
Paul K. Charlton, U.S. Attorney, Michael T. Morrissey, Chief,
Appellate Section, and Kimberly M. Hare, Assistant U.S.
Attorney, Phoenix, Arizona, for the appellant.
Barbara L. Spencer, Spencer, Hubbard & Glitsos, Phoenix,
Arizona, for the appellee.
OPINION
PER CURIAM:
Petitioner United States (“the government”) appeals the
District Court of Arizona’s dismissal of its indictment charg-
ing appellee Raymond Simpson with being a felon in posses-
sion of a firearm, in violation of 18 U.S.C. § 922(g)(1). The
government argues the district court improperly relied on the
underlying facts of Simpson’s previous felony conviction,
rather than on the “categorical approach,” to find that Simp-
son’s conviction did not constitute a “felony involving vio-
lence” under Arizona Revised Statute (A.R.S.) § 13-
3101(5)(b) (1989).1 We conclude that because Simpson had
his civil rights restored and was not classified as a convicted
felon under Arizona law, he was not a felon in possession for
purposes of § 922(g)(1). Accordingly, we affirm.
I. BACKGROUND
In April 1988, Simpson engaged in sexual relations with a
fourteen-year-old girl. As a result, the Maricopa County
1
A.R.S. § 13-3101(5)(b) (1989), defining a prohibited possessor of a
firearm, was moved in 1991 to A.R.S. § 13-3101(6)(b) with no change in
the language. Although the district court cited to the 1991 version of the
statute, because Simpson was convicted in 1989, we cite to A.R.S. § 13-
3101(5)(b) (1989).
3292 UNITED STATES v. SIMPSON
Attorney charged Simpson with three counts of sexual con-
duct with a minor, all class two felonies and dangerous crimes
against children in the first degree. Simpson pled guilty to
attempted sexual abuse of a minor in violation of A.R.S. § 13-
1404, and was sentenced to two years of probation. Simpson
served his probation and had his probation discharged on May
7, 1991, in accordance with A.R.S. § 13-912.
On August 28, 2003, a federal grand jury indicted Simpson
on the charge of being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Simpson
filed a motion to dismiss the indictment which the district
court granted. Reviewing United States v. Meza-Corrales, 183
F.3d 1116, 1128 (9th Cir. 1999),2 the district court considered
whether Simpson could be charged under 18 U.S.C.
§§ 922(g)(1) and 924(a)(2), and found “that the Arizona judge
sentenced the Defendant to two years probation after he pled
guilty to attempted sexual abuse of a minor only because he
apparently determined, under the facts of this particular case,
that the commission of the offense did not in fact involve vio-
lence.” Finding that A.R.S. § 13-912(A) substantially restored
Simpson’s rights on successful completion of his probationary
period, the district court concluded that “under the facts of
this particular case, the Defendant’s prior conviction for
attempted sexual abuse of a minor was not a felony involving
violence, and thus he was not a prohibited possessor within
the meaning of A.R.S. § 13-3101.” The district court granted
Simpson’s motion to dismiss the indictment. The government
appeals the district court’s dismissal.
2
Meza-Corrales applied a two-step analysis for a felon-in-possession
charge to “(1) determin[e] whether [the Defendant’s] civil rights had not
been restored under Arizona law” and, if they had been restored, (2) to
“determin[e] whether [the Defendant’s] right to possess a firearm nonethe-
less somehow still was restricted in an express manner under Arizona
law.” 183 F.3d at 1128.
UNITED STATES v. SIMPSON 3293
II. STANDARD OF REVIEW
This court reviews questions of law de novo, Milenbach v.
Commissioner, 318 F.3d 924, 930 (9th Cir. 2003), and
reviews findings of fact for clear error. Nunes v. Mueller, 350
F.3d 1045, 1051 (9th Cir. 2003). This court also reviews de
novo whether a prior conviction may be used as a predicate
offense in a prosecution under 18 U.S.C. § 922(g)(1). United
States v. Laskie, 258 F.3d 1047, 1049 (9th Cir. 2001).
III. ANALYSIS
[1] 18 U.S.C. § 922(g) provides, in relevant part, that “[i]t
shall be unlawful for any person who has been convicted in
any court of, a crime punishable by imprisonment for a term
exceeding one year . . . to . . . possess . . . any firearm . . . .”
18 U.S.C. § 921(a)(20) defines when an individual is consid-
ered “convicted” for purposes of § 922(g):
What constitutes a conviction of [a crime punishable
by imprisonment for a term exceeding one year]
shall be determined in accordance with the law of
the jurisdiction in which the proceedings were held.
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.
(emphasis added). At the time of Simpson’s 1989 conviction,
A.R.S. § 13-3101(5)(b) defined a prohibited possessor as,
inter alia, “any person [who] has been convicted within or
without this state of a felony involving violence . . . and
whose civil rights have not been restored.”3 Thus, our inquiry
3
This aspect of § 13-3101 was amended in 1994 to define a prohibited
possessor as “any person [who] has been convicted within or without this
3294 UNITED STATES v. SIMPSON
is a “two-step analysis” that considers (1) whether Simpson’s
civil rights were restored after his 1989 conviction and, if so,
(2) whether Arizona law has nevertheless expressly prohibited
Simpson from possessing a firearm. See Meza-Correales, 183
F.3d at 1128.
A. Whether Simpson’s Civil Rights Were Restored
[2] At the time of Simpson’s arrest, A.R.S. § 13-904(A)
provided that
A conviction for a felony suspends the following
civil rights of the person sentenced:
1. The right to vote.
2. The right to hold public office of trust or profit.
3. The right to serve as a juror.
4. During any period of imprisonment any other
civil rights the suspension of which is reason-
ably necessary for the security of the institution
in which the person sentenced is confined or for
the reasonable protection of the public.
Accordingly, as of 1989, Arizona law did not suspend Simp-
son’s right to possess a firearm.4 In addition to having some
rights automatically suspended under § 13-904(A), Simpson
was subject to several standard restrictive terms and regula-
state of a felony or who has been adjudicated delinquent and whose civil
right to possess or carry a gun or firearm has not been restored.” A.S.C.
§ 13-3101(6)(b).
4
In 1994, A.R.S. § 13-904 was amended to add a fifth suspension item:
“The right to possess a gun or firearm.” Because Simpson was convicted
in 1989 and discharged from probation in 1991, this amendment is not
applicable to him.
UNITED STATES v. SIMPSON 3295
tions during the course of his two-year probation. Standard
Term 11 provided that Simpson could not “possess, control,
or own any firearms, ammunition, explosives, deadly weap-
ons, or prohibited weapons as defined by A.R.S. § 13-3101.”
[3] The record also demonstrates Simpson satisfactorily
completed his two-year probation, and was released from its
restrictive terms. Upon completion of his probation, Simp-
son’s rights that had been suspended under § 13-904(A) were
automatically restored to him. A.R.S. § 13-912(A) (1991) pro-
vides, in relevant part, that
Upon completion of the term of probation . . . any
person who has not previously been convicted of any
other felony shall automatically be restored any civil
rights which were lost or suspended by the convic-
tion.
The record indicates that Simpson had not been convicted of
any other felony. Thus, upon completion of his probationary
period in 1991, all of Simpson’s civil rights that had been sus-
pended or restricted because of his 1989 conviction were
restored to him by operation of law.
B. Whether Arizona Expressly Prohibited Simpson From
Possessing A Firearm
Having determined that Simpson’s civil rights were
restored following the conclusion of his probation, we turn to
the second question: has Arizona law otherwise expressly pro-
hibited Simpson from possessing a firearm? Meza-Corrales,
183 F.3d at 1128. The answer is a straight-forward “no.” In
1989, A.R.S. § 13-904(A) suspended only Simpson’s rights to
vote, hold public office, and serve as a juror, and those rights
were restored by operation of law under § 13-912(A). The
probation-term restriction against possessing a firearm
expired—as did all of the other terms of Simpson’s probation
—at the conclusion of his probationary term. Accordingly,
3296 UNITED STATES v. SIMPSON
Arizona law did not expressly prohibit Simpson from possess-
ing a firearm following the end of his probation.
The government argues that the restrictive term prohibiting
Simpson from possessing a firearm during his two-year pro-
bation survived the end of that probation, and that Simpson
failed to take the steps necessary to restore his right to possess
a firearm. This claim is erroneous. The government points out
that in 1991, A.R.S. § 13-912(B) provided that § 13-912(A)
“does not apply to a person’s right to possess weapons as
defined in § 13-301 unless he applies to a court pursuant to
the procedures of § 13-906.” However, Simpson’s right to
possess a firearm was never formally and indefinitely sus-
pended in the same manner as were his rights to vote, hold
office, and serve as a juror. Rather, the restrictions placed on
Simpson’s right to possess a firearm—as well as those placed
on his right to be free of search and seizure absent probable
cause—are more aptly described as special conditions
imposed by the court which applied only for the period of
probation (i.e., two years) and no longer. Thus, § 13-912(B)’s
limitation is inapposite.
[4] Moreover, even if we were to countenance the govern-
ment’s assertion that the probation-period restrictions on
Simpson’s right to possess a firearm somehow survived the
end of his probation, Arizona law certainly did not expressly
provide that Simpson could not possess a firearm following
his probation, as it must where his civil rights have been
restored. See 18 U.S.C. § 922(g).5 Our conclusion is in har-
mony with our decision in Meza-Corrales, 183 F.3d at 1129-
30. In that case, the government sought to bring felon-in-
possession charges against a former Arizona prisoner, a first-
5
While §§ 13-904(A) and 13-3101(5)(b) were amended in 1994 and
now expressly provide that a felon may not possess a firearm even after
his probationary term is ended, we of course may not apply this law retro-
actively to those, like Simpson, whose civil rights had already been
restored prior to the 1994 amendments.
UNITED STATES v. SIMPSON 3297
time felon whose rights were restored to him under § 13-
912(A) following his detention. We held that § 13-904(A) did
not suspend the former prisoner’s right to possess a firearm,
and that § 13-912(A) restored to him all of his civil rights.
The former prisoner’s right to possess a firearm was undoubt-
edly restricted during his incarceration; yet we concluded that
there were no express restrictions on the former prisoner’s
right to possess a firearm following his release and that, in the
absence of some express restriction, § 13-912(B) was inappo-
site:
[A]lthough it is true . . . that A.R.S. § 13-912(B)
expressly provided that A.R.S. § 13-912(A) did not
apply to past felons so far as the automatic restora-
tion of their rights to possess firearms was con-
cerned, that provision had no relevance for step (2)
of the analysis . . . . [A.R.S. § 13-912(B)] did
expressly provide that it would not restore a past
felon’s right to possess a firearm, but it did not
expressly provide that he was prohibited from doing
so if he had not lost the right previously (i.e., Arizo-
na’s restoration law did not give back anything that
was formerly taken away, but at the same time, it did
not take away anything that was not formerly taken
away).
Id. (internal citations omitted)). Accordingly, we conclude
that nothing in Arizona law expressly prohibited Simpson
from possessing a firearm following the end of his probation.
IV. CONCLUSION
[5] Simpson’s civil rights were fully restored after he suc-
cessfully completed his probation and Arizona law did not
expressly prohibit him from possessing a firearm. Accord-
ingly, under Arizona law, he was not properly considered
“convicted” for purposes of § 922(g). For the reasons stated,
the district court properly dismissed Simpson’s indictment.
AFFIRMED.