United States v. Rodney Edward Thompson

Case: 11-15122 Date Filed: 12/11/2012 Page: 1 of 8

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 11-15122
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D. C. Docket No. 2:10-cr-00125-WHA-CSC-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RODNEY EDWARD THOMPSON,

Defendant-Appellant.

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Appeal from the United States District Court
for the Middle District of Alabama
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(December 11, 2012)

Before DUBINA, Chief Judge, CARNES and ANDERSON, Circuit Judges.

DUBINA, Chief Judge:
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Appellant Rodney Thompson appeals the district court’s denial of his

motion to dismiss the indictment charging him with a violation of 18 U.S.C.

§ 922(g)(1). Thompson also appeals his sentence on substantive reasonableness

grounds. After reviewing the record, reading the parties’ briefs, and having the

benefit of oral argument, we affirm.

I.

Thompson was convicted of first degree assault in Alabama state court in

March 1994. Following his conviction, Thompson lost the right to possess a

firearm, to hold office, to serve on juries, and to vote. See 18 U.S.C. § 922(g)(1)

(loss of right to possess firearm); ALA. CODE § 36-2-1(a)(3) (loss of right to hold

public office); ALA. CODE § 12-16-150(5) (loss of right to serve on juries); ALA.

CODE § 15-22-36.1(a)(1) (loss of right to vote). In 2005, Thompson applied to the

State of Alabama for restoration of his civil rights. Thompson received a letter

from the State of Alabama Board of Pardons and Paroles on January 10, 2006.

That letter stated in part, “ENCLOSED IS YOUR CERTIFICATE OF

RESTORATION OF VOTER REGISTRATION RIGHTS.” The certificate

attached to the letter is entitled “CERTIFICATE OF RESTORATION OF VOTER

REGISTRATION RIGHTS,” and states that “IT IS ORDERED THAT THE

RIGHTS AS AN ELECTOR THAT WERE FORFEITED AS A RESULT OF

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THE AFORESAID CONVICTION(S) BE AND THEY ARE HEREBY

RESTORED.” The certificate also states that it “AUTHORIZES THE

RECIPIENT TO REGISTER TO VOTE; HAVING SO REGISTERED, TO

PARTICIPATE AS AN ELECTOR OF THE STATE OF ALABAMA. THIS

CERTIFICATE IS NOT A PARDON AND DOES NOT RESTORE, REMOVE

OR ADDRESS ANY OTHER RIGHTS, PRIVILEGES OR REQUIREMENTS.”

A separate letter, dated January 13, 2006, from the State of Alabama Board of

Pardons and Paroles states, “This certificate serves ONLY the function of allowing

you to register to vote, and addresses no other right or function. If you desire to

have any additional rights restored, please inquire at your local probation and

parole office.”

In September 2009, the Montgomery Police Department arrested Thompson

while he was in possession of a firearm. In July 2010, a federal grand jury charged

Thompson in a one-count indictment with being a felon in possession of a firearm,

in violation of 18 U.S.C. § 922(g)(1). Thompson entered an unconditional guilty

plea in May 2011. Before sentencing, the district court held a status conference to

explore Thompson’s argument, raised several months earlier in a supplemental

brief unaccompanied by a motion, that the restoration of his voting rights negated

his status as a felon under 18 U.S.C. § 921(a)(20). The district court allowed

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Thompson to file a motion to dismiss the indictment so the court could address his

argument. The district court found that § 921(a)(20) does not apply when only

voting rights are restored, even though there may be multiple attendant rights

attached to the key right to vote, and denied Thompson’s motion to dismiss.

II.

As a threshold matter, the court finds it appropriate to address subject matter

jurisdiction sua sponte. While an unconditional guilty plea acts as a waiver of all

non-jurisdictional challenges to a conviction, challenges to subject matter

jurisdiction cannot be waived. United States v. Betancourth, 554 F.3d 1329, 1332

(11th Cir. 2009). Accordingly, we conclude that Thompson’s argument that the

indictment fails to charge an offense that implicates the district court’s jurisdiction

was not waived by his unconditional guilty plea, see United States v. Bell, 22 F.3d

274, 275 (11th Cir. 1994), and his appeal is properly before this court.

III.

Whether a prior conviction under state law counts as a prior conviction for

purposes of § 922(g)(1) is “a question of law which is subject to de novo review in

this court.” United States v. Willis, 106 F.3d 966, 967 (11th Cir. 1997). The court

reviews the reasonableness of a sentence under a deferential abuse of discretion

standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591 (2007).

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IV.

Thompson contends that he should not have been convicted under 18 U.S.C.

§ 922(g)(1), which makes it 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 in or affecting commerce, any firearm or ammunition[.]”

§ 922(g)(1). Thompson does not argue that he was never convicted of a felony in

state court. Rather, he argues that because his right to vote was restored, he falls

within the 18 U.S.C. § 921(a)(20) exception, which provides that “[a]ny conviction

. . . for which a person . . . has had civil rights restored shall not be considered a

conviction for purposes of this chapter, unless such . . . . restoration of civil rights

expressly provides that the person may not ship, transport, possess, or receive

firearms.” § 921(a)(20) (emphasis added).

Neither the statute nor the legislative history clarifies which civil rights must

be restored to a convicted felon in order to satisfy the § 921(a)(20) exception. We

have held that where a convicted felon’s civil rights are “unreservedly” restored, he

qualifies for the § 921(a)(20) exception, see United States v. Tait, 202 F.3d 1320,

1323 (11th Cir. 2000), and that the exception does not apply where a convicted

felon has no civil rights restored after his conviction, see United States v. Nix, 438

F.3d 1284, 1287–88 (11th Cir. 2006). In Nix, we left open the question whether

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“all civil rights must be restored or merely some of them, and if only some, which

ones, in order for § 921(a)(20) to preclude a convicted felon’s prosecution under

§ 922(g)(1).” Id. at 1287. We must now decide whether the restoration of only the

right to vote is a sufficient restoration of civil rights under § 921(a)(20) to preclude

a convicted felon’s prosecution under § 922(g)(1).

Our inquiry begins, as it always does, with the plain language of the statute.

See, e.g., Harris v. Garner, 216 F.3d 970, 972–73 (11th Cir. 2000) (en banc).

Under § 922(g)(1), a person with a prior felony conviction cannot legally possess a

gun, unless he has had his “civil rights restored” as provided for in § 921(a)(20).

This court has cited with approval decisions stating that the three key civil rights to

which § 921(a)(20) refers are (1) the right to vote, (2) the right to serve on a jury,

and (3) the right to hold public office. See Nix, 438 F.3d at 1287–88. Because

§ 921(a)(20) requires the restoration of “civil rights”—plural—more than one of

those three key civil rights must be restored to satisfy the statutory requirements.

This conclusion is in accord with the decisions of the majority of our sister circuits

that have addressed the issue. See, e.g., United States v. Brown, 408 F.3d 1016,

1017 (8th Cir. 2005) (concluding that § 921(a)(20) was not satisfied where a

defendant’s right to vote had been restored but his right to serve on a jury or to

hold certain public offices had not); United States v. Huff, 370 F.3d 454, 460 (5th

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Cir. 2004) (concluding that § 921(a)(20) was not satisfied where a defendant had

only his right to vote restored); United States v. Horodner, 91 F.3d 1317, 1319 (9th

Cir. 1996) (reasoning that “civil rights were not substantially restored” and

§ 921(a)(20) was not satisfied where a defendant’s right to vote and to hold public

office had been restored but his right to serve on a jury had not); United States v.

Maines, 20 F.3d 1102, 1104 (10th Cir. 1994) (concluding that § 921(a)(20) was not

satisfied where a defendant’s right to vote had been restored but his right to serve

on a jury or to hold public office had not); United States v. Essig, 10 F.3d 968,

975–76 (3d Cir. 1993) (finding that § 921(a)(20) was not satisfied where a

defendant’s right to serve on a jury had not been restored after his conviction, even

though he had retained the right to vote and to hold public office); United States v.

Hassan El, 5 F.3d 726, 734 (4th Cir. 1993) (concluding that § 921(a)(20) was not

satisfied where a defendant’s right to serve on a jury had not been restored).

Thompson argues that he falls within the § 921(a)(20) exception because

“voting rights” encompasses several attendant rights, including the right to vote in

federal elections, the right to vote in state elections, and the right to vote in

primaries. While one can view the right to vote as encompassing subsidiary rights

associated with it, the fact remains that Thompson had only one of the three key

civil rights restored: the right to vote. The restoration of only one of the three key

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civil rights does not satisfy the plain language of § 921(a)(20), which requires a

restoration of “civil rights.” § 921(a)(20) (emphasis added). Accordingly, we

conclude that the restoration of only Thompson’s right to vote, and any attendant

rights subsumed therein, is insufficient to satisfy § 921(a)(20). 1

Finally, we conclude that Thompson’s 12-month sentence, which is at the

bottom of his guidelines range, is substantively reasonable and that the district

court did not abuse its discretion in imposing that sentence.

V.

For the foregoing reasons, we affirm the district court’s denial of

Thompson’s motion to dismiss the indictment and its imposition of sentence.

AFFIRMED.

1
Although Thompson also argued in the district court that the rule of lenity supports his
interpretation of the statute, he abandoned that argument by failing to include it in his brief to
this court. Holland v. Gee, 677 F.3d 1047, 1066 (11th Cir. 2012) (“The law is by now well
settled in this Circuit that a legal claim or argument that has not been briefed before the court is
deemed abandoned and its merits will not be addressed.” (alteration and quotation marks
omitted)).
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