United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT August 8, 2006
Charles R. Fulbruge III
Clerk
No. 05-20636
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES CHENOWITH,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before JONES, Chief Judge, and BARKSDALE and BENAVIDES, Circuit
Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
Primarily at issue is the denial of Charles Chenowith’s
motion, pursuant to his civil-rights restoration, to quash
(dismiss) his indictment. He claims that restoration precluded his
prior Ohio felony conviction from serving as the predicate offense
for his felon-in-possession charge. VACATED and REMANDED.
I.
In August 2004, Special Agents with the Bureau of Alcohol,
Tobacco, Firearms, and Explosives found a revolver while executing
a search warrant at Chenowith’s residence. That September, he was
indicted for knowingly and unlawfully possessing the revolver in
and affecting interstate or foreign commerce, subsequent to being
convicted of a crime punishable by imprisonment for a term
exceeding one year, in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). The predicate felony was a 1974 manslaughter to which
Chenowith had pleaded guilty in Ohio.
Pre-trial, Chenowith moved to dismiss the indictment,
claiming, inter alia, it failed to allege a prior conviction as
defined in 18 U.S.C. § 921(a)(20), because he had received a
certificate from Ohio in 1978 restoring the rights forfeited by his
Ohio conviction, namely his rights to vote, serve on juries, and
hold public office. That motion was denied.
Chenowith was convicted by a jury. In May 2005, he was
sentenced, among other things, to 12 months and one day
imprisonment. He is free on bail, pending appeal.
II.
Chenowith primarily claims the district court erred in not
dismissing his indictment because his Ohio conviction did not serve
as a predicate offense for purposes of § 922(g)(1). (Because
Chenowith prevails on this issue, we need not reach his claims that
the district court erred by: admitting evidence of a prior felony
conviction from Louisiana; not sua sponte giving a limiting
instruction regarding that conviction; denying his requested
instruction limiting the predicate offense for the felon-in-
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possession charge; giving a deliberate-ignorance instruction; and
denying an acceptance-of-responsibility reduction.)
Chenowith presents two claims regarding the refusal to
dismiss. First, he asserts that, under 18 U.S.C. § 921(a)(20), his
Ohio conviction was not a felon-in-possession predicate offense
because his civil rights had been restored in Ohio. (Because this
claim has merit, we need not reach his second claim — his Ohio
conviction was the result of an invalid plea.)
“The question whether a felony conviction may serve as a
predicate offense for a prosecution for being a felon in possession
of a firearm pursuant to § 922(g)(1) is purely a legal one”, for
which we have plenary review. United States v. Daugherty, 264 F.3d
513, 514 (5th Cir. 2001) (internal citation and quotation marks
omitted), cert. denied, 534 U.S. 1150 (2002).
Section 922(g) provides: “[A]ny person ... who has been
convicted in any court of[] a crime punishable by imprisonment for
a term exceeding a year” is prohibited from, inter alia, possessing
“any firearm or ammunition”. 18 U.S.C. § 922(g). Concerning
whether Chenowith’s Ohio conviction served as a predicate offense,
§ 921(a)(20) proscribes certain felony convictions from being so
used. It states, in part:
What constitutes a conviction of such a crime
shall be determined in accordance with the law
of the jurisdiction in which the proceedings
were held. Any conviction ... for which a
person ... has had civil rights restored shall
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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.
18 U.S.C. § 921(a)(20) (emphasis added).
Chenowith contends a Final Release and Restoration certificate
from the Ohio Adult Parole Authority, effective 1 November 1978,
restored his civil rights. Stating that, “[s]ince being granted a
parole from the institution, [Chenowith] ha[d] conducted [him]self
satisfactorily as demonstrated by [his] conduct and ability”, it
restored, pursuant to “the Authority of the Section 2967.16
[granted to] the Adult Parole Authority[,] ... the rights and
privileges forfieted [sic] by [his] conviction; namely, the right
to vote if ... otherwise eligible, to serve on juries and to hold
public office”. As noted, the certificate was expressly granted
pursuant to Ohio law, § 2967.16; in 1978, the statute stated in
relevant part:
When a paroled prisoner has faithfully
performed the conditions and obligations of
his parole and has obeyed the rules and
regulations adopted by the adult parole
authority that apply to him, the authority
upon the recommendation of the superintendent
of parole supervision may enter upon its
minutes a final release and thereupon shall
issue to the paroled prisoner a certificate of
final release, but no such release shall be
granted earlier than one year after the
prisoner is released from the institution on
parole unless his maximum sentence has expired
prior thereto, and in the case of a prisoner
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whose minimum sentence is life imprisonment,
no such release shall be granted earlier than
five years after the prisoner is released from
the institution on parol.
A prisoner who has served the maximum
term of his sentence or who has been granted
his final release by the adult parole
authority shall be restored to the rights and
privileges forfeited by his conviction.
OHIO REV. CODE ANN. § 2967.16(A) (1974) (emphasis added).
Our court undertakes a two-pronged inquiry to determine
whether the restoration of rights disqualifies a prior felony
conviction from serving as the felon-in-possession predicate
offense. United States v. Osborne, 262 F.3d 486, 489 (5th Cir.
2001); see United States v. Thomas, 991 F.2d 206, 213 (5th Cir.)
(“[r]emaining faithful to the Ninth Circuit’s two-step approach” in
United States v. Gomez, 911 F.2d 219, 221 (9th Cir. 1990)), cert.
denied, 510 U.S. 1014 (1993). First, we consider whether
Chenowith’s civil-rights restoration was sufficient to meet the
requirements of § 921(a)(20). Thomas, 991 F.2d at 211, 213; see
Osborne, 262 F.3d at 489 (asking whether, by individual
certification or operation of law, “essentially all civil rights”
were restored (internal citation omitted)). Second, if such rights
were restored sufficiently, we examine whether he “was nevertheless
expressly deprived of the right to possess a firearm by some
provision of the restoration law or procedure of the state of the
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underlying conviction”. Thomas, 991 F.2d at 213 (emphasis in
original).
A.
For determining whether civil rights have been sufficiently
restored, our court has held: “[I]f, upon release from prison, the
suspension of a convicted felon’s rights to, inter alia, vote, hold
public office, and sit on a jury evaporates ... such felon’s civil
rights have been restored for purposes of § 921(a)(20)”. Id. at
212-13. Because Chenowith’s final-release certificate restored
each of these three rights, his civil rights were sufficiently
restored for purposes of § 921(a)(20). See id.; see also United
States v. Bost, 87 F.3d 1333, 1335 (D.C. Cir. 1996) (“It is
generally agreed that the ‘civil rights’ referred to in section
921(a)(20) are the rights to vote, to hold elective office, and to
serve on a jury.” (citing United States v. Caron, 77 F.3d 1, 2 (1st
Cir. 1996); United States v. Cassidy, 899 F.2d 543, 549 (6th Cir.
1990); and Thomas, 991 F.2d at 212-13)).
B.
As discussed, because Chenowith’s civil rights were restored
sufficiently, we next “determine whether [he] was nevertheless
expressly deprived of the right to possess a firearm by some
provision of the restoration law or procedure of the state of the
underlying conviction”. Thomas, 991 F.2d at 213 (emphasis in
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original). Circuit courts are divided regarding whether, for this
second inquiry, we look only to the certificate of restoration to
decide if it expressly limits Chenowith’s rights with regard to
firearms, or whether we look to all of Ohio statutory law to decide
if any statute prohibits convicted felons from possessing firearms.
See Bost, 87 F.3d at 1335 (stating the Seventh, Ninth, and this
circuit adhere to the former approach; the Fourth, Sixth, and
Tenth, the latter). Along this line, Ohio law provides: “[N]o
person shall knowingly acquire, have, carry, or use any firearm”
while under disability, including having previously “been convicted
of any felony offense of violence”. OHIO REV. CODE ANN. § 2923.13.
Although our court has never squarely considered the situation
where a defendant’s civil rights were restored affirmatively by
certificate, rather than by operation of law, we at least
contemplated such a scenario in Thomas, 991 F.2d at 209-16. See
Daugherty, 264 F.3d at 516 n.5 (“This circuit has considered only
situations in which the defendant’s civil rights were passively
restored by operation of state law.” (citing Thomas and United
States v. Dupaquier, 74 F.3d 615, 617-19 (5th Cir. 1996))). Thomas
considered whether the defendant was nevertheless expressly
prohibited from possessing a firearm, distinguishing between
restoration of civil rights by operation of law and “an affirmative
or active restoration (with certificate)”. 991 F.2d at 213.
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Regarding active restoration, Thomas agreed with the Seventh
Circuit:
“If the state sends the felon a piece of paper
[or certificate] implying that he is no longer
‘convicted’ and that all civil rights have
been restored, a reservation in a corner of
the state’s penal code can not be the basis of
a federal prosecution. A state must tell the
felon [point blank] that [firearms] are not
kosher.”
Id. (first and third alterations and emphasis in original; second
alteration in Erwin) (quoting United States v. Erwin, 902 F.2d 510,
512-13 (7th Cir.), cert. denied, 498 U.S. 859 (1990)).
Chenowith’s civil rights were restored by his final-release-
and-restoration certificate, not by operation of law. Although the
Government contends his rights were restored automatically, his
certificate was granted, as discussed, under the discretionary
authority provided by § 2967.16. As quoted earlier, it states, in
part: “[T]he [Ohio Adult Parole Authority,] upon the
recommendation of the superintendent of parole supervision[,] may
enter ... a final release and thereupon shall issue to the paroled
prisoner a certificate of final release”. OHIO REV. CODE ANN. §
2967.16(A) (emphasis added). Chenowith’s restoration of rights was
not automatic.
The Government also asserts § 2961.01 of Ohio’s Revised Code
supports its contention that Chenowith’s rights were restored by
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operation of law. That statute, however, merely states a convicted
felon may not vote, serve on a jury, or hold office in Ohio, but
that the convicted felon may vote following his final discharge.
OHIO REV. CODE ANN. § 2961.01.
In Bost, 87 F.3d at 1335, the D.C. Circuit considered both of
the above Ohio statutes, concluding Bost’s rights were restored in
1982 by a combination of certificate and operation of law. Section
2961.01 restored his right to vote upon receiving a final
discharge; his certificate under § 2967.16 expressly restored his
rights to hold office and serve on a jury. OHIO REV. CODE ANN. §§
2961.01 and 2967.16; see Bost, 87 F.3d at 1334 (quoting the
certificate as restoring “the right to serve on juries and to hold
office of honor, trust, or profit”, while noting the “right to vote
was restored automatically by statute”). In addition, Bost noted
that, although § 2923.13 “prohibits convicted felons from
possessing, acquiring, or using firearms”, § 2923.14 nevertheless
“prescribes the procedures by which state firearm privileges may be
restored”. 87 F.3d at 1336 (citing OHIO REV. CODE ANN. §§ 2923.13 and
2923.14). Because neither § 2961.01 (which restored the right to
vote) nor § 2967.16 (under which the certificate restored the right
to serve on a jury and hold office) imposed a restriction on a
convicted felon’s possessing a firearm, however, the court
concluded Bost recovered his rights “through a combination of
sources that d[id] not expressly restrict his rights with respect
9
to firearms”; accordingly, the felony at issue could not serve as
the felon-in-possession predicate offense. Id. at 1337.
It is unknown why Bost’s certificate did not restore all three
rights, as authorized by § 2967.16. In any event, its failure to
do so has no bearing on the disposition of the issue at hand.
Here, Chenowith’s civil rights being restored pursuant to
certificate, not by operation of law, is even stronger than in
Bost, where the certificate restored only the rights to serve on
juries and hold office. Id. at 1336. As discussed, Chenowith’s
certificate restored all three rights.
Furthermore, Chenowith’s certificate is silent regarding
possessing firearms. This is significant because, as quoted
earlier, § 921(a)(20)’s plain language provides that a conviction
for which a person’s civil rights have been restored shall not
serve as the predicate offense “unless such ... restoration of
civil rights expressly provides that the person may not ship,
transport, possess, or receive firearms”. 18 U.S.C. § 921(a)(20)
(emphasis added). Therefore, consistent with the D.C., Seventh,
and Ninth Circuits, we construe this language to mean we “may look
no further than the source of the restoration of ... civil rights
to see whether ... gun-related rights have been restricted”. Bost,
87 F.3d at 1336; see United States v. Herron, 45 F.3d 340, 343 (9th
Cir. 1995) (holding Congress has instructed to look at the
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certificate of restoration for whether there is a firearm
restriction, not all state law); United States v. Glaser, 14 F.3d
1213, 1218 (7th Cir. 1994) (“When the state gives the person a
formal notice of restoration of civil rights, ... the final
sentence of § 921(a)(20) instructs us to look, not at the contents
of the state’s statute books but at the contents of the
document.”). But see Cassidy, 899 F.2d at 549-50 (looking “to the
whole of [Ohio] law”, regardless of whether the restoration was by
certificate or operation of law, and concluding the earlier-
referenced Ohio Revised Code § 2923.13 expressly prohibited Cassidy
from possessing a firearm); see also United States v. Burns, 934
F.2d 1157, 1160 (10th Cir. 1991) (following Cassidy), cert. denied,
502 U.S. 1124 (1992); United States v. McLean, 904 F.2d 216, 218
(4th Cir.) (same), cert. denied, 498 U.S. 875 (1990). But see
Thomas, 991 F.2d at 210 n.20 (noting this court’s “lingering
doubts” regarding the Sixth Circuit’s holding in Cassidy,
particularly “[c]onsidering the ‘expressly provides’ language
pointed to by the Erwin court”).
This interpretation comports with § 921(a)(20)’s plain
language. Therefore, we decline to follow Cassidy’s reliance on §
921(a)(20)’s legislative history. See Bost, 87 F.3d at 1336 (“A
resort to legislative history is uncalled for ... because [§
921(a)(20)’s] instructions are clear.”).
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Because the certificate is the source of Chenowith’s civil-
rights restoration, and because it does not expressly prohibit his
possessing firearms, the district court erred in denying his motion
to dismiss his indictment. See id. at 1338 (holding “[b]ecause
neither the certificate nor the statute [of Ohio civil-rights
restoration] contain[ed] any language expressly limiting [the]
right to possess a firearm, ... [defendant was] not subject to
prosecution under section 922(g)”).
III.
For the foregoing reasons, Chenowith’s conviction and sentence
are VACATED and this matter is REMANDED to district court with
instructions to dismiss the indictment.
VACATED AND REMANDED
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