United States v. Osborne

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-10862

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

versus
GERALD LEE OSBORNE,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Texas

August 21, 2001

Before HIGGINBOTHAM and EMILIO M. GARZA, Circuit Judges, and DOWD,*
District Judge.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Gerald Lee Osborne appeals from his conditional guilty plea to

the charge of felon in possession of ammunition in violation of 18

U.S.C. §§ 922(g)(1) and 924(a)(2). We are persuaded that Osborne

did not commit the charged crime because his prior convictions are

excluded by 18 U.S.C. § 921(a)(20). We REVERSE Osborne’s federal

conviction and REMAND for dismissal of the indictment.

This case turns on the interpretation of a federal statute

that limits the felonies that will support a prosecution under the

federal prohibition of possession of firearms by a felon. In

*
District Judge of the Northern District of Ohio, sitting by
designation.
general, the federal statutory scheme excludes a state felony

conviction where the felon’s civil rights, including the right to

possess firearms, have been restored by the convicting state. We

must examine the law of the convicting state to determine if the

felon’s civil rights have been restored. We are nonetheless

answering a federal question–what restoration counts under the

federal statute. States restore civil rights in myriad ways in

scope and time. As we will explain, the Supreme Court has made

plain that the restoration of the right to possess firearms must be

complete, so we know that the conviction will count in a federal

prosecution if the restored right to possess firearms did not

include all firearms.

Today, our question is not about scope; rather it is about the

timing of the restoration by the state. It has two aspects. Five

years after serving his sentence, all of Osborne’s civil rights

were restored. Thereafter, Illinois changed its law to deny felons

the right to possess weapons. So when Osborne was indicted in this

case, his civil rights had been restored by Illinois, but taken

back in part.

The government urges that because Osborne’s right to possess

a firearm was not restored on his release, but rather five years

later, the Illinois conviction will support a federal prosecution.

Alternatively, the government argues, at the time Osborne possessed

the bullets (not in Illinois) it was illegal to do so under

Illinois law. We conclude that by the plain language of the

2
federal statute, when Osborne’s civil rights lost on his conviction

were restored, that conviction ceased to support federal

prosecutions. The restoration need not be at the moment of his

release or service of sentence, and once civil rights are restored

by the convicting state, later changes in state law are not

relevant.

I

Gerald Lee Osborne was twice convicted of burglary in

Illinois: once in 1970 and once in 1972. He received two

sentences, both in excess of one year, which he served. On March

7, 1975, after he had completed his sentences, the Illinois

Department of Corrections sent him a letter stating that his right

to vote, to serve on juries, and to administer estates had been

restored. By operation of law, Osborne’s right to hold public

office was also restored upon completion of his sentence.

At this time, Illinois law permitted convicted felons to

possess firearms starting five years after the completion of their

sentence.1 In 1984, however, the Illinois legislature prohibited

convicted felons from ever possessing firearms.2 Illinois courts

have construed that statute as covering all convicted felons, even

1
See Ill. Rev. Stat. ch. 38, ¶ 24-3.1(a)(3) (1975).
2
See 720 Ill. Comp. Stat. 5/24-1.1(a) (2001).

3
those whose right to bear firearms was restored prior to the

passage of the act.3

In 1999, Osborne admitted to an FBI agent that he possessed

five .357 Magnum bullets. He was charged with being a felon in

possession of ammunition in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2). The district court denied his pretrial motions to

dismiss the indictment and for a jury instruction supporting his

view of the statute. He entered into a conditional plea agreement,

reserving the right to challenge on appeal whether the 1984

Illinois statute prohibiting felons from possessing ammunition

brought him within the scope of § 922(g), and whether the

“knowingly” element of § 922(g) required that he know that he was

a felon prohibited from possessing firearms.

The district court granted Osborne a downward departure,

imposing probation, on the grounds that Osborne had good reason to

believe that all of his civil rights had been restored, and that

his possessing ammunition was not a federal crime. This appeal

followed.

II

Osborne was charged with violating 18 U.S.C. § 922(g), which

provides that “[i]t shall be unlawful for any person - (1) who has

been convicted in any court of, a crime punishable by imprisonment

for a term exceeding one year; . . . to . . . possess in or

3
See People v. McCrimmon, 501 N.E.2d 334, 336-37 (Ill. App.
Ct. 1986).

4
affecting commerce, any firearm or ammunition.”4 Osborne

unquestionably possessed ammunition that had moved in interstate

commerce. He argues that he does not qualify as a convicted felon

because of 18 U.S.C. § 921(a)(20). That statute provides, in

pertinent part, that:

Any conviction . . . 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 . . .
restoration of civil rights expressly provides that the person
may not ship, transport, possess, or receive firearms.5

When applying section 921(a)(20), this circuit follows a two-

part test. “We first ask whether ‘the state which obtained the

underlying conviction revives essentially all civil rights of

convicted felons, whether affirmatively with individualized

certification or passively with automatic reinstatement.”6 In this

case, the answer to that question is “yes.” Upon his discharge

from prison, Osborne’s rights to vote, sit on juries, and hold

public office were restored.7 Five years later he regained his

right to possess firearms.

4
18 U.S.C. § 922(g) (2001).
5
18 U.S.C. § 921(a)(20) (2001).
6
United States v. Dupaquier, 74 F.3d 615, 617 (5th Cir.
1996).
7
In the absence of a generalized restoration of civil rights,
we look to these three key rights to determine whether “essentially
all” of a felon’s rights have been restored. See id. at 618.

5
 With a “yes” answer, we then ask whether “the defendant was

nevertheless expressly deprived of the right to possess a

firearm.”8

A

The government says that, by the federal statutory

definitions, Osborne’s civil rights were not restored sufficiently

under section 921(a)(20). This is because, while Illinois

immediately returned to him his right to vote, to serve on juries,

and to hold public office, Illinois law at the time provided that

convicted felons could not carry firearms until five years after

the completion of their sentence.

To the extent that this argument rests on a suggestion that

the right to bear arms must be regained at the same time all other

civil rights are regained, our case law rejects it. In United

States v. Dupaquier,9 the defendant had been convicted of a felony

in Louisiana, and served his sentence. Upon his release from

prison, the Louisiana constitution generally restored his civil

rights.10 A Louisiana statute, however, provided that convicted

felons could not possess firearms until “ten years after the date

of completion” of their sentences.11 We said:

8
Id. at 617.
9
74 F.3d 615 (5th Cir. 1996).
10
Id. at 617-18.
11
Id. at 618.

6
 As we have found that the Louisiana Constitution restored
essentially all of Dupaquier’s civil rights upon completion of
his sentence on July 14, 1980, and the statutory restriction
on his right to possess firearms terminated on July 14, 1990,
we hold that Dupaquier was not a convicted felon within the
meaning of sections 921(a)(20) and 922(g)(1) at the time of
the alleged conduct on August 8, 1990.12

Thus, under Dupaquier, there is no insistence upon a complete

coincidence in time for the restoration of civil rights. A waiting

period does not mean that a restoration of a convicted felon’s

civil rights can never qualify under section 921(a)(20). Rather,

a federal prosecution cannot rest upon a conviction for which such

a restoration of rights has occurred, because that conviction is

excluded from section 922(g)(1) once the waiting period has

elapsed.

Decisions by the Supreme Court have not eroded Dupaquier’s

controlling force. The reading of section 921(a)(20) in Caron v.

United States13 is instructive. Caron had been convicted of several

felonies under Massachusetts law, and argued that those convictions

should not count because his civil rights had been restored by

operation of Massachusetts law. The Court considered whether a

provision of Massachusetts law providing that convicted felons

could, after five years, possess rifles and shotguns would trigger

12
Id. at 619.
13
524 U.S. 308 (1998).

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the “unless” clause in section 921(a)(20).14 The Court held that

the prosecution could proceed because while Massachusetts did not

forbid the weapon Caron possessed, it did not restore his right to

possess all weapons that other citizens were entitled to possess.15

The Court focused only on Massachusetts’s prohibition of handgun

possession, without any hint that the five-year waiting period was

relevant. The dissent was even more specific: Justices Thomas,

Scalia, and Souter stated that “Massachusetts law did not expressly

provide that petitioner could not possess firearms. . . .

Petitioner was ‘entitled to’ a firearm identification card five

years after his release from prison.”16

The lesson of Dupaquier is that a state may restore a felon’s

civil rights, but impose a waiting period upon his right to possess

firearms. Once that waiting period expires, the relevant state

conviction ceases to count for purposes of sections 921(a)(20) and

922(g)(1).

B

The government next argues that the 1984 Illinois statute

barring convicted felons from possessing firearms triggers the

“unless” clause. As we explained, Illinois would apply its statute

14
524 U.S. at 311. The “unless” clause is the portion of
section 921(a)(20) that reads “unless such . . . restoration of
civil rights expressly provides that the person may not ship,
transport, possess, or receive firearms.”
15
Id. at 315-16.
16
Id. at 317 & n.* (Thomas, J. dissenting).

8
to felons who were released from prison prior to 1984, even those

who had been released from prison for more than five years when the

statute was enacted. Osborne, for example, would have violated

Illinois law had he possessed his bullets in Illinois. The

question before us is whether that fact suffices to trigger the

“unless” clause.

We reiterate that our task is to interpret a federal statute.

Whether a state restriction of a felon’s civil rights triggers the

“unless” clause of section 921(a)(20) is a question of federal law.

Here, because the language of the federal statute is plain and

unambiguous, it begins and ends our enquiry. We give effect to

plain and unambiguous language, unless a literal interpretation

would produce an irrational result.17 The relevant language of

section 921(a)(20) is plain and unambiguous.18

17
Kelly v. Boeing Petroleum Servs., 61 F.3d 350, 362-53 (5th
Cir. 1995).
18
We are not alone in this viewpoint. Two other federal
circuits have read this statute and concluded that its plain
meaning requires the view we adopt today. See United States v.
Cardwell, 967 F.2d 1349, 1350-51 (9th Cir. 1992) (“The plain
meaning of this use of the present tense is that the courts must
determine the effect of the . . . restoration of civil rights at
the time it is granted and cannot consider whether the defendant’s
civil rights later were limited or expanded.”); United States v.
Norman, 129 F.3d 1393, 1397 (10th Cir. 1997) (quoting Cardwell).
Those circuits have placed primary emphasis on the use of the
present tense in section 921(a)(20). We find the use of the words
“such . . . restoration” to be considerably more compelling. We
cannot see how the statute could have been written to consider
subsequent revocations of the right to possess firearms by merely
changing the tense, without also changing the “such . . .
restoration” language.

9
 Reinforcing our conclusion that restoration of civil rights

need not be effective immediately on completing a sentence, we

further conclude that the statute requires courts to look to the

law at the time a defendant’s civil rights were restored, without

reference to later changes in the law. The use of the phrase “such

. . . restoration of civil rights” is sufficiently clear; it refers

back to the restoration of civil rights discussed in the previous

clause. While courts may debate the question of whether “such . .

. restoration” includes the full compass of state law at the time

a prisoner is released from custody, as opposed to just the law

invoked in a restoration certificate or a restoration statute,19 it

cannot be that “such . . . restoration” includes laws that had not

been passed at the time the restoration occurred. By contrast, the

statute does not read “unless state law expressly provides that the

person may not possess firearms.”

See also United States v. Haynes, 961 F.2d 50, 53 (4th Cir.
1992) (analyzing only the law in place at the time defendant’s
civil rights were restored).
19
See, e.g., United States v. Thomas, 991 F.2d 206, 212-13
(5th Cir. 1993) (speculating that “such . . . restoration” might be
limited to the part of the state statutes which affirmatively
restore rights, and might exclude restrictions codified elsewhere
in the state’s code).

10
 In reaching this conclusion, we are taking sides in a conflict

amongst the federal circuits. The Fourth,20 Eighth,21 Ninth,22 and

Tenth23 Circuits have held that section 921(a)(20) looks only to the

law of the state at the time a felon’s civil rights are restored.

The Seventh Circuit appears to be of a contrary view. In Melvin v.

United States,24 the Seventh Circuit upheld a section 922(g)(1)

conviction. In that case, the defendant pointed out that his

general civil rights were restored upon his release from prison in

1977, the five-year waiting period expired in 1982, and his state

right to possess firearms was not again curtailed until 1984.25 The

Seventh Circuit nevertheless held that because Illinois considered

the defendant’s firearm possession unlawful at the time he

possessed firearms, section 921(a)(20) did not apply and the prior

convictions counted for section 922(g)(1) purposes.26 Neither

Melvin nor the cases it cites, however, explain how its

20
See Haynes, 961 F.2d at 53.
21
See United States v. Traxel, 914 F.2d 119, 124 (8th Cir.
1990).
22
See Cardwell, 967 F.2d at 1350-51.
23
See United States v. Fowler, 104 F.3d 368, 1996 WL 734637
(10th Cir. 1996) (unpublished); United States v. Norman, 129 F.3d
1393, 1397-98 (10th Cir. 1997) (approving Fowler on this issue).
24
78 F.3d 327 (7th Cir. 1996).
25
Id. at 329-30.
26
Id. at 330.

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interpretation can be squared with the plain text of the statute.

We are unable to agree that “such . . . restoration” includes

statutes not passed at the time the felon’s civil rights were

restored.

We hold that the 1984 Illinois statute, passed after Osborne’s

civil rights were fully restored to him, did not trigger the

“unless” clause of section 921(a)(20). We therefore REVERSE

Osborne’s conviction, and REMAND the case to the district court

with instructions to dismiss the indictment.

REVERSED AND REMANDED

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