                                                                  [ PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                  FILED
                                                      U.S. COURT OF APPEALS
                         _____________________          ELEVENTH CIRCUIT
                                                             12/17/99
                                                          THOMAS K. KAHN
                              No. 99-6105                     CLERK
                        _____________________
                      D.C. Docket No. 98-00038-001

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,


                                  versus

BOB GENE FOWLER a.k.a.
Bobby L. Fowler,

                                                     Defendant-Appellant.


                          ___________________

                Appeal from the United States District Court
                   for the Southern District of Alabama
                         ____________________

                           (December 17, 1999)



Before BLACK, Circuit Judge, GODBOLD and FAY, Senior Circuit Judges.


GODBOLD, Senior Circuit Judge:
      Bob Fowler entered into a conditional plea of guilty for violating 18 U.S.C. §

922(g)(1) for being a convicted felon who is knowingly in possession of a firearm.

We must decide whether the federal law prohibiting a convicted felon from carrying

a firearm applies to a defendant convicted in Alabama state court who successfully

petitioned the Alabama Pardon and Parole Board for a complete restoration of all of

his civil and political rights when the certificate of restoration contains no limitations

on the defendant’s right to carry, possess, or purchase firearms. We previously

addressed this question in U.S. v. Swanson, 947 F.2d 914 (11th Cir. 1991), and held

that the federal prohibition does not apply. After revisiting this issue in light of the

Supreme Court’s decision in U.S. v. Caron, 524 U.S. 308, 118 S. Ct. 2007 (1998), we

find that our holding in Swanson is consistent with Caron and reverse Fowler’s

conviction.

      Fowler was charged in a multiple count indictment that included a count that

he violated 18 U.S.C. § 922(g)(1) by knowingly possessing a .25 caliber

semiautomatic handgun in 1997 after having been convicted of a felony offense in

1972 for second degree burglary. Fowler moved to dismiss this count of the

indictment because he received in 1975 a “certificate granting restoration of civil and

political rights” from the Alabama State Board of Pardons and Paroles for the 1972

burglary conviction. After the district court denied his motion to dismiss the §

                                            2
922(g)(1) count, Fowler entered into a conditional guilty plea. The remaining counts

against Fowler were dismissed by the government and Fowler filed a timely notice of

appeal.

      Federal law forbids a person convicted of a serious offense to possess any

firearm. 18 U.S.C.§ 922(g)(1). However, 18 U.S.C. § 921(a)(20) expressly states that

a conviction for a predicate offense will not be considered if a state exercises its right

to restore the civil rights of a person for that offense.

      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.

18 U.S.C. § 921(a)(20).       Therefore, a previous conviction is not a predicate

substantive offense if the offender has had his civil rights restored, "unless such . . .

restoration of civil rights expressly provides that the person may not . . . possess . . .

firearms." 18 U.S.C. § 921(a)(20).1 Aside from the “unless clause” neither the statute

nor the legislative history defines what civil and political rights must be restored to

a convicted felon in order to satisfy the § 921(a)(20) exemption.2

      1
         This phrase is the so-called "unless clause" interpreted by the Supreme Court
in U.S. v. Caron, 524 U.S. 308, 118 S. Ct. 2007 (1998).
      2
       See U.S. v. Cassidy, 849 F.2d 543, 549 (6th Cir.1990).

                                            3
      In U.S. v. Swanson, 947 F.2d 914 (11th Cir. 1991), this court addressed

whether the restoration of a felon’s civil rights by the Alabama Board of Pardons and

Paroles also restored the felon’s right to carry a firearm.        Swanson held that a

manslaughter conviction could not serve as predicate offense for a crime of possessing

firearms by convicted felon because the defendant received a "Certificate Granting

Restoration of Civil and Political Rights" from the State Board of Pardons and Paroles

of Alabama prior to his arrest on § 922(g)(1) charges. Swanson analyzed Alabama

Supreme Court decisions interpreting the power of the Board of Pardons and Paroles

to restore a convicted felon’s right to own and possess firearms and concluded:

      Under Alabama law, then, the Board's restoration to Swanson, without
      express limitation, of "all civil and political rights" means exactly what
      it says: It nullifies "any and all legal incapacities," including the right to
      possess firearms. Contrary to [the government’s] contention, it is not the
      case that by excepting Swanson from the class of felons under section
      922(g), we relieve from federal firearms disabilities one who, for
      purposes of interpreting the federal firearms statute, remains under state
      firearms disabilities because of his conviction for manslaughter or
      larceny. Following return of "all civil and political" rights under state
      law, and absent express provision that he may not "ship, transport,
      possess, or receive firearms," Swanson is under no state firearm
      disability. Federal and state law are consistent.
      . . . In this case, a previously convicted felon cannot be indicted under
      section 922(g)(1) for possessing a firearm, not because the district court
      or this court ignored congressional intent or the intent of the Alabama
      legislature and the Board, but because the state restored to him all civil
      rights, and the certificate restoring civil rights was not expressly limited
      in the manner contemplated and provided by Congress.



                                            4
Swanson, 947 F.2d at 918-19 (discussing Alabama ex rel. Sokira v. Burr, 580 So. 2d

1340, 1341 (1991)). This court concluded that without an express provision in the

restoration certificate restricting his firearms privileges, as required by section

921(a)(20), the conviction which became the basis of his indictment is not a "crime

punishable by imprisonment for a term exceeding one year," nor is it a “conviction”

pursuant to section 922(g)(1). Id. at 915. See also U.S. v. Kolter, 849 F.2d 541 (11th

Cir.1988) (holding that the defendant could not be convicted of the predecessor statute

to § 922(g)(1) based solely on a burglary conviction because the State Board of

Pardons and Paroles restored “all the civil and political rights Kolter had lost as a

result of the burglary offense”).

      The government contends that this court’s holding in Swanson is in someway

abrogated by U.S. v. Caron, 524 U.S. 308, 118 S. Ct. 2007 (1998). In Caron a

defendant who received a certificate restoring his civil and political rights from the

Commonwealth of Massachusetts was convicted of possessing six shotguns in

violation of § 922(g). The Massachusetts law that restored his rights permitted a

convicted felon whose civil rights had been restored to possess rifles, but restricted

his right to carry handguns. The Supreme Court held that the restriction on the right

to carry handguns activated the "unless" clause of the federal statute excluding a

previous conviction as a predicate offense if the offender's civil rights had been


                                          5
restored, "unless such . . . restoration of civil rights expressly provide[d] that the

person may not . . . possess . . . firearms," even though the case involved rifles and

shotguns. 18 U.S.C.A. §§ 921(a)(20), 922(g)(1), 924(e); M.G.L.A. c. 140, §§ 121,

123, 129B, 129C, 131, 131A; c. 269, § 10.

       Aside from the “unless clause,” the parties in Caron agreed Massachusetts law

restored the defendant’s civil rights and that state law permitted him to possess rifles

and shotguns but forbade him to possess handguns outside his home or business. The

Supreme Court concluded:

      Either the restorations forbade possession of "firearms" and the
      convictions count for all purposes, or they did not and the convictions
      count not at all. The unless clause looks to the terms of the past
      restorations alone and does not refer to the weapons at issue in the
      present case. So if the Massachusetts convictions count for some
      purposes, they count for all and bar possession of all guns.

Caron, 118 S. Ct. at 2011.

      Our holding in Swanson is entirely consistent with Caron. Caron addressed the

dilemma created when a state restores some of the offender’s rights by permitting

possession of one type of firearm but prohibiting possession of another. There is no

such restriction on Fowler’s certificate restoring his civil and political rights.

      Swanson directly addressed the government’s contention that § 13A-11-72(a)

Code of Alabama 1975 provides the same statutory prohibition on one form of

weapon possession as at issue in Caron. Section 13A-11-72(a) provides as follows:

                                            6
“No person who has been convicted in this state or elsewhere of committing or

attempting to commit a crime of violence shall own a pistol or have one in his

possession or under his control.” However, unlike the Massachusetts law at issue in

Caron, Alabama law empowers the State Board of Pardons and Paroles to restore the

right of a person convicted of a crime of violence to possess a firearm. Without an

express limitation on the certificate restoring civil and political rights to Fowler, under

Alabama law the restoration of civil and political rights restores the firearm rights

limited by § 13A-11-72(a). See Swanson, 947 F.2d 916-17; Alabama ex rel Sokira

v. Burr, 580 So.2d 1340, 1345 (Ala. 1991) ( recognizing that the restoration of “all

civil rights and political privileges necessarily nullifies all legal punishment for the

offense. In other words, if the conviction incorporates certain civil and political

disqualifications, then a pardon that specifically revives all civil and political rights

must certainly remove any and all legal incapacities.”).

      Fowler was granted a certificate restoring his civil and political rights without

any reservations or prohibitions limiting his right to ship, transport, possess, or receive

firearms. In this case he cannot be convicted under § 922(g)(1) for possessing a

firearm based on his 1972 second degree burglary conviction because the state

restored to him all civil and political rights and the certificate was not expressly

limited in the manner contemplated and provided by Congress.


                                            7
We REVERSE Fowler’s conviction.




                             8
