

                  United States Court of Appeals
                      For the First Circuit
                                           

No. 94-2026

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                         GERALD R. CARON,

                      Defendant, Appellant.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. William G. Young, U.S. District Judge]                                                                

                                           

                              Before

      Torruella, Chief Judge, Coffin, Senior Circuit Judge,                                                                    
      Selya, Cyr, Boudin, Stahl, and Lynch, Circuit Judges.                                                                    

                                           

  Owen S. Walker, Federal Public Defender, for appellant.                          
  Timothy  Q  Feeley,  Assistant  U.S.  Attorney,  Brian  T.  Kelly,                                                                             
Assistant U.S. Attorney, Donald K.  Stern, United States Attorney, for                                                 
appellee.

                                           

                        February 26, 1996
                                           

                         OPINION EN BANC
                                           

     COFFIN, Senior Circuit Judge.  Appellant Gerald R. Caron was                                           

convicted  of  possessing  rifles,  shotguns  and  ammunition  in

violation  of  18 U.S.C.    922(g)(1),  the "felon-in-possession"

law.  Because  at least  three of Caron's  five predicate  felony

convictions  were  for  crimes  of violence,  he  was  subject to

sentence  enhancement  under   the  Armed  Career   Criminal  Act

("ACCA"), 18 U.S.C.   924  (e)(1).  Caron received a  prison term

of  21 years,  10 months,  plus a  five year  term of  supervised

release.  See U.S.S.G.   4B1.4.                        

     The issue in this case is whether three prior  Massachusetts

convictions should  not be counted  as predicate crimes  under 18

U.S.C.   921(a)(20), which excludes as predicates

     [a]ny conviction which has  been expunged, or set aside
     or  for which  a person  has been  pardoned or  has had
     civil  rights  restored  .  .  .  unless  such  pardon,
     expungement, or restoration  of civil rights  expressly
     provides  that  the  person may  not  ship,  transport,
     possess, or receive firearms.

The  questions we  must  address relate  to  the words  preceding

"unless," and, in particular, the procedure by which one "has had

civil  rights restored."    Under Massachusetts  laws of  general

application,  two of  Caron's  basic civil  rights were  restored

automatically after a lapse  of time or at the  expiration of his

sentence; the remaining one was never taken away from him.  

     In  an earlier stage of this  case,  United States v. Caron,                                                                          

64 F.3d 713, 718 (1st Cir. 1995), a panel of  this court, deeming

itself bound to follow United States v. Ramos, 961 F.2d 1003 (1st                                                       

Cir. 1992), held that the requirements of   921(a)(20) can be met

only  by "focused,  individualized, affirmative  action," not  by

                               -2-

laws  of  general  or  automatic application.    We  subsequently

decided to  reconsider this  holding en  banc, allowed  the panel                                                       

opinion to remain in effect  as to the other issues decided,  and

asked  for briefing  on one  additional issue:   whether,  as the

Ramos  panel  reasoned  (regarding  misdemeanors),     921(a)(20)               

cannot  be satisfied  where  civil  rights  are  not  lost  as  a

collateral  consequence  of  conviction,   since  there  is   "no

individualized official judgment" evidencing the state's "renewed

trust" in the individual.  Ramos, 961 F.2d at 1009.                                          

     The government,  after having filed a  brief urging adoption

of  the panel's  position,  notified us  that  it was  no  longer

defining  the restoration  of civil  rights to  exclude automatic

affirmative actions  based on generic statutes.   It nevertheless

did not retreat from its insistence that  some affirmative action

was required to "restore"  such rights.  And it  did not withdraw

its fallback contentions that Massachusetts statutes do not fully

restore the civil rights  of convicted felons and, in  any event,

expressly  restrict   their   rights  to   possess   firearms.   

Notwithstanding the  government's change of  position, which  was

unexplained, we must arrive at our own independent judgment. 

     After due deliberation, we now hold, in accordance  with our

seven sister circuits,1  that civil rights may be restored within
                                                  

     1   McGrath v. United States,  60 F.3d 1005  (2d Cir. 1995);                                           
United  States v.  Hall, 20  F.3d 1066  (10th Cir.  1994); United                                                                           
States v. Glaser, 14 F.3d 1213  (7th Cir. 1994); United States v.                                                                        
Thomas, 991 F.2d 206 (5th Cir. 1993); United States v. Dahms, 938                                                                      
F.2d 131 (9th  Cir. 1991); United  States v. Essick, 935  F.2d 28                                                             
(4th  Cir. 1991); and United States v. Cassidy, 899 F.2d 543 (6th                                                        
Cir. 1990). 

                               -3-

the meaning of    921(a)(20) by laws of  general application.  We

also hold that, at  least where some civil rights are restored by

the  operation of such  laws, the fact  that one  civil right was

never  lost does not prevent an individual from having "had civil

rights restored" within the meaning of the provision.  

                            BACKGROUND

A.  Facts                   

     We briefly set forth  the relevant facts.  On  two occasions

in 1993, rifles, shotguns and  ammunition were seized from Caron.

At the time  of his  arrest, his criminal  record included  three

Massachusetts  felony  convictions  (1958,  1959,  and  1963),  a

California  felony  conviction  (1970),  and  a  federal firearms

felony conviction (1977).  All four state convictions constituted

violent  crimes which could  serve as predicates  under the ACCA.

See 18 U.S.C.   924(e)(2)(B).             

B.  Massachusetts Statutory Scheme                                            

     "Civil  rights," within  the meaning  of    921(a)(20), have

been generally agreed to comprise the right to vote, the right to

seek and  hold public office, and  the right to serve  on a jury.

United States  v. Cassidy, 899 F.2d 543, 549 (6th Cir. 1990).  As                                   

an   initial   matter,   therefore,  we   recount   the  relevant

Massachusetts laws corresponding to these rights.  

     A convicted felon in Massachusetts  does not lose the  right

to  vote.   See Mass.  Gen. L.  ch. 54,     86,  103B.   He does,                         

however, lose the right  to hold public office while  serving his

sentence.  Mass.  Gen.  L.  ch.  279,    30.    And,  a  felon is

                               -4-

disqualified  from  juror  service  until seven  years  from  his

conviction.   Mass. Gen. L. ch.  234A,   4.   However, even after

seven years, a  judge can remove one from a  jury panel solely on

the basis of a prior felony conviction.  Mass. Gen. L. ch. 234,  

8.

     Clearly,  the  Massachusetts  scheme  neither  provides  for

"individualized,   affirmative   actions"   nor    for   complete

"restoration," as the  right to  vote is never  removed.   Ramos,                                                                          

therefore,   on  both   fronts,   would   mandate  that   Caron's

Massachusetts convictions  count for purposes of the  ACCA.  Now,

sitting en banc, we revisit the question whether we should depart                         

from the positions we took in Ramos.                                             

                           DISCUSSION  

A.   Restoration of Civil Rights:  Individualized Acts Only?                                                                      

     We approach  the task  of statutory interpretation  with the

following guideline foremost in mind:

     So  long  as  the  statutory   language  is  reasonably
     definite, that  language must ordinarily be regarded as
     conclusive (at least in  the absence of an unmistakable
     legislative intent to the contrary).

United States v. Charles  George Trucking Co., 823 F.2d  685, 688                                                       

(1st Cir. 1987) (citations omitted).

     The key words of 18 U.S.C.   921(a)(20) are "expunged," "set

aside,"  "pardoned," and  "civil rights  restored."   All of  the

words signify a result:  strike out, efface, eliminate (expunge);

dismiss, discard,  annul (set  aside); excuse an  offense without

punishment, release  an offender from punishment  (pardon); bring

                               -5-

back to an  original state or condition (restore).2   They do not

address  the means by which  the results may  be accomplished or,

consequently, indicate preference for any particular means. 

     In Ramos,  our panel assumed that  pardons, expungements and                       

restorations  of  rights  all  involved  individualized  official

judgments and procedures. 961 F.2d at 1010.  But the wide variety

of practices  adopted by states has  since been pointed  out.  In

United States v. Glaser, 14 F.3d  1213, 1218 (7th Cir. 1994), the                                 

court  noted   that  "[n]either  pardons  nor   expungements  are

necessarily   individualized,"  citing   mass  pardons   by  both

Presidents  Jefferson  and Carter,  and  federal  and state  laws

providing for  "routine expungement" of  convictions for juvenile

offenses.

     In McGrath v.  United States,  60 F.3d 1005,  1008 (2d  Cir.                                           

1995),  the  court recognized  that  "many  states restore  civil

rights to convicted felons by means of a general law stating that

all rights shall be  reinstated upon the service of  a sentence."

It  also noted  that other  states authorize  officials to  issue

certificates  of  restoration  after   a  given  period  of  time

following sentence or parole, while a minority of states "restore

rights in  piecemeal fashion," and twelve  states apparently have

no provision regarding restoration of civil rights.     

     Perhaps even more significantly,  in Dickerson v. New Banner                                                                           

Inst., Inc.,  460 U.S. 103  (1983), the Supreme  Court recognized                     
                                                  

     2   These synonyms are  substantially common  to The  Random                                                                           
House Dictionary (2d ed. 1987), Webster's Third New International                                                                           
Dictionary (1976), and The American Heritage Dictionary (1973).                                                                  

                               -6-

the   diversity  of   state  post-conviction   actions  such   as

expungement.  It noted that over half the states had enacted such

statutes  and  that they  varied  "in  almost every  particular,"

ranging  from applicability  only to  young offenders  or certain

offenses to  automatic expunction, and amounted  to "nothing less

than  a national patchwork."  Id.  at 121-22.  The Court reasoned                                          

that  the  purpose  of the  federal  firearms  statute "would  be

frustrated  by a ruling  that gave effect  to state expunctions,"

id. at 119, and reversed a lower court ruling that had given full            

effect  to a  state expungement  following a  successfully served

period of probation.3

     Congressional reaction to Dickerson in large part  accounted                                                  

for  the crafting of    921(a)(20), which expressly allowed state

law  to define a predicate conviction for purposes of the federal

firearms laws.4  See  McGrath, 60 F.3d at 1009.   In interpreting                                       

   921(a)(20),  therefore,  we take  into  account  not only  the

diversity  of state approaches to the restoration of civil rights

of convicted  felons but also  the clearly manifested  purpose of

Congress  to defer to state laws, in this context, in determining
                                                  

     3  The  firearm disabilities  were imposed by  18 U.S.C.    
922(g)  and  (h), enacted  under Title  IV  of the  Omnibus Crime
Control and  Safe Streets  Act of  1968, Pub.  L. No.  90-351, 82
Stat. 226 (1968) (as amended by the Gun Control Act of 1968, Pub.
L. No.  90-618, 82 Stat.  1214 (1968)).   In  1986, the  Firearms
Owners' Protection Act, Pub. L. No. 99-308, 100 Stat. 449 (1986),
amended this law  by, inter  alia, changing    921(a)(20) to  its                                           
current form.

     4    The  sentence  preceding  the sentence  at  issue  here
provides that "[w]hat  constitutes a  conviction . .  . shall  be
determined  in accordance  with the  law  of the  jurisdiction in
which the proceedings were held."  18 U.S.C.   921(a)(20).

                               -7-

predicate    convictions   and    the    removal    of    firearm

disqualifications.   As the Court  stated in Dickerson,  "[a]s in                                                                

all cases of statutory construction, our task is to interpret the

words of [the statute]  in light of the purposes  Congress sought

to  serve." 460 U.S. at  118 (quoting Chapman  v. Houston Welfare                                                                           

Rights Org., 441 U.S. 600, 608 (1979)).                     

     In light of this background, we discern no basis for reading

into the words  at issue any gloss based on  assumed frequency of

use  or primacy  of  meaning.    And, we  hesitate  to  impose  a

qualification  upon  these words  absent some  textual indication

that  such limitation  is warranted.5   Accordingly,  we conclude

that  the plain  language of    921(a)(20)  makes clear  that the

restoration   of   civil   rights   need  not   be   focused   or

individualized.

                                                  

     5  We do not overlook a plausible reading of the last clause
of   921(a)(20)  ("unless such  pardon . .  . expressly  provides
that the person may not . . . possess . . . firearms"), which the
panel  in   Ramos   found  supported   its  interpretation   that                           
individualized action was required.   961 F.2d at  1008.  But  we
think  an interpretation  consistent  with a  broader reading  is
provided by Glaser, 14 F.3d at 1218:                             

     A person who contends that state statutes have restored
     all of his  civil rights . . . [requires us] to examine
     the whole  of state statutory law  to determine whether
     the state treats  him as "convicted" for the purpose of
     possessing firearms.  When the state gives the person a
     formal  notice  of  the restoration  of  civil  rights,
     however, the final  sentence of    921(a)(20) instructs
     us to look, not  at the content of the  state's statute
     books but at the contents of the document.

This interpretation jibes with the Court's instruction in Beecham                                                                           
v. United  States, 114 S. Ct. 1669, 1671 (1994), to focus on "the                           
plain meaning of the whole statute -- not of isolated sentences."

                               -8-

     From our  present perspective, therefore, we see  no need to

look into legislative history.6   See Summit Inv. and  Dev. Corp.                                                                           

v. Leroux, 69  F.3d 608,  610 (1st Cir.  1995) ("Plain  statutory                   

language  does not prompt  recourse to countervailing legislative

history.").    Nonetheless, given  that  we  initially reached  a

contrary conclusion, and to  ensure that there is not  "a clearly

expressed  legislative intent  to the  contrary,"  Dickerson, 460                                                                      

U.S. at 110  (internal quotation marks and citation  omitted), we

take  a brief foray into the legislative history of   921(a)(20).

     Our review leads  us to the conclusion  that the legislative

history  of   the  provision  "'is  more   conflicting  than  the

[statutory] text is  ambiguous.'"  United  States v. Aversa,  984                                                                     

F.2d  493, 499 n.8  (1st Cir. 1993) (en  banc) (quoting Wong Yang                                                                           

Sung v.  McGrath, 339  U.S. 33,  49 (1950)).   We begin  with the                          

statutory predecessors of    922(g)(1), 18  U.S.C. App.     1201-

1203, which proscribed, inter alia, the possession of firearms by                                            

                                                  

     6   We  note that  the other  circuits have,  almost without
exception,  focused their  analysis  on  the statutory  language,
rather than  the legislative history.  See  Hall, 20 F.3d at 1069                                                          
("'[R]estored' .  . . does  not suggest that  the action must  be
individualized.");  Glaser,  14  F.3d  at  1218  ("Nothing  in                                       
921(a)(20) distinguishes according to  the frequency with which a
state dispenses some boon."); Thomas, 991 F.2d at 213("[R]ights .                                              
. .  reinstated automatically by  operation of law  . . .  are no
less 'restored' than are such  rights that have been  resurrected
by  an 'affirmative act' of the state."); United States v. Gomez,                                                                          
911  F.2d  219, 221  (9th Cir.  1990)  ("If Congress  intended to
require  an  individual affirmative  act  of  restoration by  the
state,  Congress could have so provided.").  But see Cassidy, 899                                                                      
F.2d at  546  (relying  on legislative  history after  concluding
that it was  not clear whether   921(a)(20)  contemplated looking
only at a discrete document or the whole law of a state).

                               -9-

a  convicted felon, id.    1202(a)(1), but exempted  a person who                                 

had "expressly  been authorized  by the  President or  such chief

executive [of a state] to . . . possess . . . a firearm."  Id.                                                                           

1203(2).  There  was no comparable pardon provision applicable to

the shipping or receipt of firearms under former    922(g)(1) and

(h)(1).   

     In  1981,  S.  1030   was  introduced,  which,  as  revised,

contained  essentially the  language of  the  last sentence  of  

921(a)(20).  See  Cassidy, 899 F.2d  at 547.  A  Senate Judiciary                                   

Committee Report  explained that the bill would  repair the above

described inconsistency between    922  and 1202 by expanding the

pardon provision to  encompass   922.  See S.  Rep. No. 476, 97th                                                    

Cong., 2d Sess. 18  (1982).  In addition, the  explicit reference

to chief executives was dropped and the exemption was expanded to

include expungements and restorations of civil rights.  See id.                                                                           

     While  such expansion  might indicate  a movement  away from

individualized action, other excerpts provide  a contrary thrust.

For  instance, to demonstrate the  need for the  bill, the report

expressly cited to Thrall v. Wolfe, 503 F.2d 313 (7th Cir. 1974),                                            

where the court held that a state pardon still did not permit one

to receive or purchase a  firearm.  See S.  Rep. No. 476, at  18.                                                 

Although the report  made no  mention of  the kind  of pardon  in

Thrall, it was  an individualized one.  The  report also used the                

following language to describe  the last clause of    921(a)(20):

"In the event that the official  granting the pardon, restoration                                         

of  rights or expungement of record does not desire it to restore

                               -10-

the  right  to  firearm  ownership, this  provision  is  rendered

inapplicable where  the order  or pardon expressly  provides that

the person may not possess firearms."  Id. (emphasis added).  And                                                    

it referred to  this last clause as providing "flexibility should

such  a pardon or  restoration be  based upon  considerations not

relating  to fitness  to  own a  firearm."   Id.  at  12.   Taken                                                          

together,  these  extracts  might  indicate  that  individualized

actions were intended.  

     Nonetheless, we note that  S. 49, the successor to  S. 1030,

was explained by Senator Hatch as addressing the problem  created

by imposing federal sanctions on persons who "have had their full

civil rights restored pursuant to State law."   He added: 

     This  [bill] will  accommodate  State  reforms  enacted
     since 1968  which permit  dismissal of charges  after a
     plea  and  successful  completion  of   a  probationary
     period.  Since the  Federal prohibition is triggered by
     the  States' conviction,  the  States' law  as to  what
     disqualifies an  individual  from firearms  use  should
     govern.

131  Cong. Rec.  S8,689  (daily ed.  June  24, 1985).   Both  the

reference to reforms  and the  linking of state  power to  define

both   the   triggering   conviction   and   the   conditions  of

disqualification   tilt   toward   the   inclusion   of   generic

restorations of rights.

     It could be  and has  been argued that  Congress, which  has

held itself out as endeavoring  to tighten laws against  firearms

abusers,  would not lightly turn over final decision power to the

states,  allowing them  in effect  to nullify  federal sanctions.

But, as the Second Circuit observed, 

                               -11-

          The very decision to have restoration triggered by
     events governed by state law insured anomalous results.
     . .  . They  are the  inevitable consequence  of making
     access to  the exemption  depend on the  differing laws
     and policies of the several states.

McGrath, 60 F.3d at 1009.                 

     In summary, we discern no such clear and compelling evidence

of Congressional intent to  limit restoration of civil rights  to

individualized  procedures  and  judgments   as  to  change   our

interpretation  of  what  we  deem to  be  unambiguous  language.

Ramos' holding  regarding the  need for individualized  action is               

overruled.

B.   Restoration of Rights Not Taken Away                                                   

     It remains for us to decide whether civil rights never taken

away can be said to be "restored."  The Ramos panel, dealing with                                                       

a person convicted of a misdemeanor, and therefore a person whose

civil rights were left  untouched by Massachusetts law, concluded

that "restore" meant the giving back of what had been taken away.

It   addressed  the   anomaly  that   those  convicted   of  mere

misdemeanors could  never have firearms while  those convicted of

the most  serious crimes could qualify, and  responded that "[b]y

the affirmative  act of  pardon, expungement or  restoration, the

state has declared its renewed trust  in that person."  961  F.2d

at 1009.

     In  McGrath,  the  Second   Circuit  agreed,  rejecting  the                          

argument  that not having suffered the loss of one's civil rights

is the "functional equivalent" of restoration, explaining, "[t]he

'restoration'  of  a   thing  never  lost  or  diminished   is  a

                               -12-

definitional impossibility." 60  F.3d at 1007.   It discerned  an

intent in the 1986 legislation to treat "a subsequent forgiveness

. . . as an acknowledgement of rehabilitation   or an affirmative

gesture  of goodwill  that  merited exemption  from the  firearms

bar."   Id.   And, as far  as the probability  of "anomalies" was                    

concerned,  the  court,  as   we  have  noted,  deemed  this   as

inevitable.  It  concluded that only  Congress or the  particular

state can properly address the problem.

     This   reasoning,  admittedly   technical,  is   not  easily

dismissed.   The  use  of  the  word  "restore"  calls  for  some

affirmative act  by the state.  It is not cavalierly ignored.  In

the instant case,  however, we  are not confronted  with a  total

absence  of affirmative action, as  in Ramos and  McGrath.  Here,                                                                   

affirmative action has taken  place with respect to the  right to

sit on a jury (subject to some contingency) and the right to hold

public  office.  Only the right to vote  was not taken away.  The

words of   921(a)(20) literally apply:  Caron is  "a person [who]

. . . has had  civil rights restored."   In this case, therefore,

the dictates of both literalism and sense are met.  

     We leave  till another  day the  question whether,  when one                                                                           

civil right is restored but two  were never taken away, the  same

answer would  prevail, together  with the basic  question whether

the literal application  of "restore"  to a case  where no  civil

rights were taken  away is so lacking in sense  as to command the

same result.  We  acknowledge, however, that, contrary  to Ramos'                                                                          

holding, the  "restoration"  requirement does  not  automatically

                               -13-

exclude  the  possibility  that   rights  never  taken  away  can

sometimes be viewed  as rights  restored.  In  addition, we  note

that   921(a)(20)  would seem to be in need  of revisiting by the

Congress so that the  problems that have busied the  courts might

be resolved in harmony with legislative intent.

                              * * *

     Our two  holdings do not dispose of this case.  There remain

other  asserted issues, including whether  the right to  sit on a

jury has been  sufficiently restored, and whether  there has been

an express provision that appellant may not possess firearms.  We

must leave to the district  court the determination whether these

and other  issues  have  been  raised and  preserved,  and  their

disposition on the merits.

     The judgment  is  vacated and  the  matter remanded  to  the                                                                           

district court for resentencing.   As to all other  issues in the                                                                           

case, the original panel opinion shall remain in full force.                                                                      

                               -14-
