                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 04a0170n.06
                              Filed: December 17, 2004

                                            No. 03-1450

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                        )
                                                 )
       Plaintiff-Appellee,                       )    ON APPEAL FROM THE UNITED
                                                 )    STATES DISTRICT COURT FOR THE
v.                                               )    EASTERN DISTRICT OF MICHIGAN
                                                 )
OSCAR FLORES,                                    )
                                                 )           OPINION
       Defendant-Appellant.                      )
                                                 )
                                                 )
                                                 )

Before: BATCHELDER and DAUGHTREY, Circuit Judges; and DOWD, Senior District
Judge.*

PER CURIAM:

                                       I.   Introduction.

       The issues on this appeal, following a jury conviction for possession of a firearm by a

convicted felon in violation of 18 U.S.C. § 922(g), are directed to the enhanced sentence of 235

months based on the finding that Flores was, as defined in 18 U.S.C. § 924(e)(1), a career criminal

offender.1 The government contended in its enhancement notice that Flores had four prior


       *
         The Honorable David D. Dowd, Jr., United States District Judge for the Northern District
of Ohio, sitting by designation.
       1
          The appellant also raises ineffectiveness of his trial counsel, an issue we decline to
consider on direct appeal, see Massaro v. United States, 538 U.S. 500, 504-05 (2003), and, in his
supplemental brief, a Blakely issue which we find meritless in view of United States v. Koch, 383
                                                                                    (continued...)
(Case No. 03-1450)

convictions that satisfied the requirements for a judicial determination that Flores was a career

criminal offender.2

        The statutory requirements for the enhanced sentence for violating § 922(g) require three

qualifying convictions as stipulated in § 924(e)(1) which states:

               In the case of a person who violates section 922(g) of this title and has three
       previous convictions by any court referred to in section 922(g)(1) of this title for a
       violent felony or a serious drug offense, or both, committed on occasions different
       from one another, such person shall be fined under this title and imprisoned not less
       than fifteen years, and, notwithstanding any other provision of law, the court shall
       not suspend the sentence of, or grant a probationary sentence to, such person with
       respect to the conviction under section 922(g).

       Two of the convictions were for prior drug convictions and no challenge was raised by Flores

as to application of those offenses to the enhancement provisions for an armed career criminal

offender.

       The sentencing issue focused on the two other convictions, i.e., the juvenile adjudication for

assault with a knife and the 1987 Michigan conviction for carrying a concealed weapon. The

government contended that both convictions counted.3 The district court did not address the issue



       1
       (...continued)
F.3d 436 (6th Cir. 2004) (en banc).
       2
           The § 924(e) notice specifying Flores as an armed career criminal was filed prior to trial
on April 12, 2002. The notice listed a November 2, 1970 juvenile adjudication for assault with a
knife in Saginaw County, Michigan; a Michigan conviction on January 12, 1977 for delivery of
heroin; a December 19, 1987 Michigan conviction for carrying a concealed weapon, which was
listed in the notice as a conviction under § 924(e)(2)(B)(i); and a December 28, 1987 conviction in
U.S. District Court in the Eastern District of Michigan, Northern Division, for distribution of heroin.
       3
          The government’s sentencing memorandum acknowledged the expungement of Flores’s
juvenile adjudication by operation of state law, but argued that the adjudication still counted under
the teachings of Caron v. United States, 524 U.S. 308 (1998). See JA 130-31.

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(Case No. 03-1450)

of whether the Michigan conviction for carrying a concealed weapon counted, but agreed with the

government that the juvenile adjudication did count, given the dictates of § 924(e)(2) (C) which

state:

                The term “conviction” includes a finding that a person has committed an act
         of juvenile delinquency involving a violent felony.

         We turn now to examine the question of whether the juvenile adjudication qualifies as a

“violent felony.”

         In that context, the § 924(e)(1) reference to a “violent felony” requires examination of the

definition of the term “violent felony” which is set forth in § 924(e)(2)(B):

                 The term “violent felony” means any crime punishable by imprisonment for
         a term exceeding one year, or any act of juvenile delinquency involving the use or
         carrying of a firearm, knife, or destructive device that would be punishable by
         imprisonment for such term if committed by an adult, that --
                 has as an element the use, attempted use, or threatened use of physical force
         against the person of another; or
                 is burglary, arson, or extortion, involves use of explosives, or otherwise
         involves conduct that presents a serious potential risk of physical injury to another.

                                 II. The District Court’s Decision.

         Faced with the dispute as to whether either or both non-drug convictions counted as a

“violent felony” to constitute the necessary third conviction under the provisions of § 922(g), the

district court published a brief decision which stated in its entirety as follows:

                At the time of defendant’s sentencing the Court included defendant’s juvenile
         conviction for assault with a knife in determining that the Armed Career Criminal
         enhancement applied. See 18 U.S.C. § 924(e). Defendant objected to the
         enhancement on the grounds the conviction had been expunged as a matter of law,
         citing United States v. Merryman, 1994 WL 54430 (6th Cir. Feb. 23, 1994)
         (unpublished). The government responded, citing Caron v. United States, 524 U.S.
         308, 316-17 (1998), decided after Merryman, where the Supreme Court effectively
         held that as long as a conviction carries with it any disability under state law, the

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(Case No. 03-1450)

       fact that it has been expunged nevertheless requires it be considered as a conviction
       under 18 U.S.C. § 924(e). (Emphasis added).

              Following Caron, Michigan law, as argued by the government in the
       Government’s Sentencing Memorandum filed February 14, 2003, defendant’s
       juvenile conviction, notwithstanding the fact it has been expunged by operation of
       law, prevents defendant from obtaining a concealed weapons permit. Because
       defendant cannot obtain a concealed weapons permit, his juvenile conviction is,
       under Caron, a predicate offense under 18 U.S.C. § 924(e). As such, the sentence
       enhancement is appropriate. (Emphasis added).

JA at 190.

 III. Does the decision in Caron v. United States, 524 U.S. 308, 316-317 (1998) override the
expungement provisions of 18 U.S.C. § 921(a)(20) in view of the fact that Flores, under
Michigan law, is not eligible to obtain a license to carry a concealed weapon?

       18 U.S.C. § 921(a)(20) provides in relevant part as follows:

                       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 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.)

       In Caron, the defendant was permitted under Massachusetts law to possess some firearms,

but not all firearms. A majority of the Supreme Court concluded that the right in the Commonwealth

of Massachusetts to possess some weapons, i.e., firearms, did not translate to the right to possess

all firearms. Consequently, even though, by reason of the restoration of his civil rights, Caron was

permitted under Massachusetts law to possess rifles or shotguns, he was not permitted to possess a

handgun.




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(Case No. 03-1450)

       Against that factual background, the Caron court rejected the defendant’s argument that his

prior Massachusetts convictions should not count for enhancement purposes, even though the

defendant’s civil rights had been restored. In reaching that ruling, the Caron court analyzed the

“unless” clause of § 921(a)(20) in the following passages:

               Aside from the unless clause, the parties agree Massachusetts law has
       restored petitioner’s civil rights. As for the unless clause, state law permits him to
       possess rifles and shotguns but forbids him to possess handguns outside his home or
       business. The question presented is whether the handgun restriction activates the
       unless clause, making the convictions count under federal law.

       ...

              The phrase “may not . . . possess . . . firearms,” then, must be interpreted
       under either of what the parties call the two “all-or-nothing” approaches. Either it
       applies when the State forbids one or more types of firearms, as the Government
       contends; or it does not apply if state law permits one or more types of firearms,
       regardless of the one possessed in the particular case.

       ...

               Under petitioner’s all-or-nothing argument, federal law would forbid only a
       subset of activities already criminal under state law. This limitation would contradict
       the intent of Congress. In Congress’ view, existing state laws “provide less than
       positive assurance that the person in question no longer poses an unacceptable risk
       of dangerousness.” Dickerson, 460 U.S. at 120. Congress meant to keep guns away
       from all offenders who, the Federal Government feared, might cause harm, even if
       those persons were not deemed dangerous by States. See id., at 119. If federal law
       is to provide the missing “positive assurance,” it must reach primary conduct not
       covered by state law. The need for this caution is borne out by petitioner’s rifle
       attack on the Miller family, in which petitioner used a gun permitted by state law.
       Any other result would reduce federal law to a sentence enhancement for some state-
       law violations, a result inconsistent with the congressional intent we recognized in
       Dickerson. Permission to possess one gun cannot mean permission to possess all.

       ...




                                                 5
(Case No. 03-1450)

               As to the possession of weapons, however, the Federal Government has an
       interest in a single, national, protective policy, broader than required by state law.
       Petitioner’s approach would undermine this protective purpose.

       ...

                In sum, Massachusetts treats petitioner as too dangerous to trust with
       handguns, though it accords this right to law-abiding citizens. Federal law uses this
       state finding of dangerousness in forbidding petitioner to have any guns.

Caron, 524 U.S. at 313-17.

       We find that Michigan’s statutory prohibition on Flores’ right to obtain a license or permit

to carry a concealed weapon does not activate the “unless” provision of § 921(a)(20) as the statutory

prohibition does not relate to shipping, transporting, possessing or receiving firearms. The Michigan

law authorizing its citizens to apply for a license to carry a concealed weapon does not speak to the

possession of firearms as did the Massachusetts law. As a consequence, we reject the district court’s

reliance on the juvenile adjudication for assault with a knife as a “violent crime” within the context

of § 924(e).

       The Caron decision refused to divide the concept of possession into lawful and unlawful

divisions; but to extend the Caron decision to denial of a permit to conceal a firearm would extend

the “unless” clause of § 921(a)(20) to the additional act of concealment of a firearm. We find that

extension of the teachings of Caron under the factual setting for this case is not warranted. Thus,

we hold that the juvenile adjudication does not count as a violent felony for the purposes of

enhancement.4


       4
         The appellant’s brief raised the argument that the juvenile conviction should have been
excluded because the government did not demonstrate that the defendant had counsel. In light of
                                                                                   (continued...)

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(Case No. 03-1450)

    IV. Does Flores’ Michigan conviction for carrying a concealed weapon qualify as a
“violent felony”?

       However, there exists an unresolved issue as to whether the December 19, 1987 Michigan

conviction for the crime of carrying a concealed weapon counts as a violent felony. If so, the

enhanced penalty imposed by the district court would still constitute a valid sentence. As indicated,

the government argued that Flores’ prior Michigan conviction for carrying a concealed weapon

qualified as a “violent felony” under the enhancement provisions of § 924(e)(1). The district court

did not make a definitive ruling on that claim. There is a division of opinion on this issue by our

sister circuits.5 We find that this issue should initially be considered by the district court after the

parties have the opportunity to fully brief the issue.

       The conviction for the violation of 18 U.S.C. § 922(g) is affirmed, but the sentence to a term

of 235 months is vacated, and this case is remanded to the district court for further proceedings on




       4
        (...continued)
our decision that the juvenile adjudication does not count as a violent felony for the purposes of
enhancement, we need not address this separate argument.
       5
          United States v. Hall, 77 F.3d 398, 401-402 (11th Cir. 1996) concluded that a conviction
for carrying a concealed weapon constituted a “violent felony.” The Hall court focused on §
924(e)(2)(B)(ii) which spotlighted “conduct that presents a serious potential risk of physical injury
to another” and opined that “carrying a concealed weapon is conduct that poses serious potential risk
of physical injury and, so, falls under the definition of violent felony.” United States v. Whitfield,
907 F.2d 798, 800 (8th Cir. 1990) reached a different result, holding that a prior state conviction for
carrying a concealed weapon did not constitute a “violent felony.” The Whitfield court declared:
“(A)lthough carrying an illegal weapon may involve a continuing risk to others, the harm is not so
immediate as to ‘present [ ] a serious potential risk of physical injury to another.’” The Whitfield
court cited as authority United States v. Johnson, 704 F.Supp. 1403, 1407 (E.D. Mich. 1989), aff’d
per curiam, 900 F.2d 260 (6th Cir. 1990). As the Sixth Circuit decision in the Johnson case is
unpublished, we are not bound by that decision.


                                                   7
(Case No. 03-1450)

the issue of whether the defendant’s prior state conviction for carrying a concealed weapon qualifies

as a violent felony.




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(Case No. 03-1450)

       MARTHA CRAIG DAUGHTREY, dissenting. Because I conclude that the district

court was correct to apply Caron v. United States, 524 U.S. 308 (1998), to the facts of this

case, I respectfully dissent.


       As the majority notes, in determining whether 18 U.S.C. § 922(e)(1) applies in this

case, we are interpreting federal law and must seek to carry out the intent of Congress in

its decision to increase the punishment of armed career criminals. Congress has made it

clear that we are to count as a “violent felony” the offense committed by Flores as a

juvenile, unless, as 18 U.S.C. § 921(a)(20) provides, that conviction has been pardoned

or expunged. In this case, the juvenile conviction was expunged by operation of state law,

but under the applicable Michigan statute, Flores is nevertheless prevented from obtaining

a permit to carry a concealed weapon. Thus, the inquiry shifts to the exception carved out

in subsection (a)(20), the so-called “unless clause.”


       That exception provides that the ameliorative effect of a pardon, expungement, or

restoration of civil rights is inoperative if the “expungement . . . expressly provides that the

person may not . . . transport [or] possess . . . firearms.” 18 U.S.C. § 921(a)(20). Just as

the Caron court determined that permission to possess rifles or shotguns but not handguns

was sufficient to bring the defendant within the exception to § 921(a)(20), see Caron v.

United States, 524U.S. at 316-17, it seems clear to me that a prohibition against

transporting or possessing concealed weapons is the sort of limitation that Congress must

have intended in adding the “unless clause” to § 921(a)(20). The purpose of the clause is

to “keep guns away from all offenders who, the Federal Government feared, might cause

                                               9
(Case No. 03-1450)

harm, even if those persons were not deemed dangerous by States,” Caron, 524 U.S. at

315, especially where, as in this case, Michigan’s juvenile expungement provision

expressly limits the right to carry a concealed weapon and is an obvious example of “state

laws [that] ‘provide less than positive assurance that the person in question no longer

poses an unacceptable risk of dangerousness.’” Id. (quoting Dickerson v. New Banner

Inst., Inc., 460 U.S. 103, 120 (1983)).


       Here, the proof is in the pudding. Just how high is the risk of dangerousness

involved in the possession of a concealed weapon? Certainly, it is high enough to cause

the majority to remand this case to have the district court determine whether a conviction

for carrying a concealed weapon constitutes a “violent felony” for purposes of § 924(e). It

seems to me that the further inquiry ordered by the majority is unnecessary and that the

district court should simply be affirmed.




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