                            In the
    United States Court of Appeals
                For the Seventh Circuit
                         ____________

No. 02-4015
UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,
                                v.

DURRIEL E. GILLAUM,
                                           Defendant-Appellant.
                         ____________
            Appeal from the United States District Court
                for the Western District of Wisconsin.
           No. 02 CR 21—Barbara B. Crabb, Chief Judge.
                         ____________
     ARGUED SEPTEMBER 17, 2003—DECIDED JANUARY 20, 2004
                                        *
                  AMENDED JUNE 23, 2004
                         ____________


    Before RIPPLE, MANION, and WILLIAMS, Circuit Judges.
  MANION, Circuit Judge. A jury found Durriel Gillaum
guilty of possession of a firearm by a felon and sentenced
him to a prison term of 188 months. On appeal, Gillaum
challenges the execution of the search warrant that uncov-


*
  Appellant filed a petition for rehearing and suggestion for
rehearing en banc after the original opinion of January 20, 2004,
and the appellee submitted an answer on February 25, 2004. The
petition for rehearing was granted, the opinion issued January 20,
2004, was withdrawn, and the present amended opinion is
substituted.
2                                                 No. 02-4015

ered the prohibited firearm, his interrogation, the failure of
the government promptly to disclose a police report to
defense counsel, the calculation of his prison sentence, and
the constitutionality of the federal felon-in-possession of a
firearm statute. We affirm.


                       I. Background
   On December 4, 2001, at approximately 7:00 a.m.,
members of the Dane County (Wisconsin) Narcotics and
Gangs Task Force, led by Detective Steven Greiber and
Sergeant Gary Anderson, executed a search warrant for the
apartment of Durriel Gillaum. The purpose of the search
warrant was to search for drugs (specifically, but not ex-
clusively, cocaine base), drug paraphernalia, and other
items likely to constitute evidence of drug trafficking. In the
four months prior to December 2001, on four occasions
undercover officers had purchased cocaine from persons in
the apartment.
  Prior to entering Gillaum’s apartment, Anderson pounded
on the door to the apartment and shouted, “Police, search
warrant.” Anderson then began counting to himself and
waving his arm to let the entry team know how much time
had elapsed. After he waited five seconds, Anderson heard
the sound of footsteps coming from inside the apartment.
Anderson testified that the footsteps did not sound as if
they were getting closer to the door and he could not
discern whether they were moving from left to right or right
to left.
  After listening to the footsteps for three to five seconds,
Anderson ordered a forcible entry into the apartment.
Anderson later testified that he did not believe three to five
seconds was sufficient time for the footsteps to reach the
entry door. In his report and recommendation denying
No. 02-4015                                                  3

Gillaum’s motion to suppress the discovery of the handgun,
the magistrate judge found that approximately eight to ten
seconds elapsed between Anderson’s knock on the entry
door and the task force’s forcible entry into the apartment.
   The footsteps Anderson heard appear to have been made
by 13-year-old Tryphenia Sykes. Tryphenia is the daughter
                              1
of Gillaum’s wife, Mary Sykes. Tryphenia testified that she
was eating breakfast and watching television when she
heard a knock on the door and someone say something. She
started towards the door but did not reach the door before
the task force rushed in.
   Inside the apartment, the task force spread throughout the
apartment. Members of the task force found Gillaum and
Mary in their bed. Gillaum was handcuffed, taken to the
living room and informed of the search warrant. In the
living room, members of the task force learned that Gillaum
was diabetic. Gillaum was asked if he was experiencing any
medical problems and was told if he was having problems
to let someone know. Gillaum was also asked if he needed
any food. Gillaum indicated that he was all right and did
not need any food. Detective Greiber then led Gillaum into
the bathroom.
  Once inside the bathroom, Greiber removed Gillaum’s
handcuffs and read Gillaum the Miranda warnings. Greiber
asked Gillaum if he was familiar with the warnings.
Gillaum told Greiber that he was familiar with the warnings
and that he was willing to talk to Greiber.
    Greiber then questioned Gillaum for approximately half


1
  Gillaum is not the biological father of Mary Sykes’ children.
Apparently, however, her children consider Gillaum their father
and we treat them as his children in this opinion.
4                                                No. 02-4015

an hour concerning drug activities. Part of this questioning
focused on a drug dealer named Kevin Harper. Gillaum
refused to provide Greiber with any information concerning
Harper. Greiber testified that Gillaum was coherent and did
not appear to be under the influence of drugs or alcohol.
Greiber also testified that Gillaum did not express a desire
to cease the interview, nor did Gillaum at any time assert
his right to remain silent. Gillaum testified that he told
Greiber that he (Gillaum) ended the interview by telling
Greiber he no longer wanted to talk. After the interview
Gillaum was again handcuffed and led back to the living
room.
  Meanwhile, members of the task force discovered in
Gillaum’s bedroom closet a Bryco .38 handgun and two
magazines of ammunition. Approximately 15 minutes after
the first interview in the bathroom, Greiber took Gillaum to
the bedroom where he allowed Gillaum to dress and
questioned him concerning the handgun. Greiber did not
provide Gillaum with a second round of Miranda warnings.
Greiber testified that Gillaum told him that the gun was not
his but that he knew the gun was in his bedroom and that
his fingerprints would likely be found on it, because he had
handled the gun and worked the ammunition through it to
make sure it worked and that it was safe.
  On February 21, 2002, a federal grand jury in the Western
District of Wisconsin returned a one-count indictment
charging Gillaum with possession of a firearm in violation
of 18 U.S.C. § 922(g)(1). On April 15, 2002, Gillaum filed a
motion to suppress the handgun asserting, inter alia, that the
failure of the task force to obey the knock and announce
requirements made the search unconstitutional. Gillaum
also filed a motion to suppress his statement to Greiber in
the second interview, asserting that the statement was
obtained in violation of Gillaum’s right against self-incrimi-
No. 02-4015                                                  5

nation. Finally, Gillaum filed a motion to dismiss the
indictment, contending that 18 U.S.C. § 922(g)(1) is uncon-
stitutional because it exceeds Congress’s power under the
Commerce Clause of the United States Constitution.
  On May 17, 2002, after an evidentiary hearing on
Gillaum’s suppression motions, a magistrate judge issued
a report and recommendation concluding that Gillaum’s
motions should be denied. On May 30, 2002, the district
court adopted the report and recommendation and denied
all of Gillaum’s motions. Gillaum’s case then proceeded to
trial.
  At trial, Gillaum and two of his wife’s children testified to
the effect that the gun had been brought into his apartment
by a man named Jori Stinson. According to Gillaum, Stinson
had sold the gun to Rashan Ross, a friend of Gillaum’s who,
at the time, was staying with Gillaum and who had access
to all areas of the apartment. Gillaum testified that he told
Ross that he could not keep the gun in the apartment.
Gillaum also denied that he told Greiber that he had seen
the gun or worked ammunition through it. Sharon Sykes,
one of Gillaum’s daughters, testified that she had seen
Stinson in the apartment and had overheard Gillaum tell
Ross, “[y]ou can’t keep that --- here.” Shawn Sykes,
Gillaum’s son, testified that he was present in Gillaum’s
apartment when Stinson sold Ross the gun and was later
present when Gillaum told Ross that Ross could not keep
the gun in the apartment.
  After the jury entered deliberations, problems arose. The
jury requested a transcript of certain portions of the tes-
timony of Gillaum and Greiber. Afer receiving a rough
transcript of the testimony, the jury sent a note to the court
indicating that it could not resolve discrepancies between
their memories of Gillaum’s testimony and the transcript of
his testimony. The court found that there were errors in the
6                                                No. 02-4015

transcript. An important error was in the transcribed
version of Gillaum’s testimony. The rough transcript had
Gillaum admitting to handling the gun. The parties agreed
that Gillaum made no such admission. The district court
found that the errors were likely to confuse the jury on
critical issues and declared a mistrial.
  A second trial was held a month later and, insofar as this
appeal is concerned, it was a reprise of the first trial.
Gillaum and his children offered the same testimony as at
the first trial. The trial lasted only a day and the jury re-
turned a guilty verdict that same day.
  During the preparation of the presentence report, the
government for the first time put forward a copy of a
Bureau of Alcohol, Tobacco, and Firearms ( “BATF”) trace
report concerning the handgun found in Gillaum’s apart-
ment. The report indicated that Brian Hesterly was the
original owner of the gun, having purchased it from a
sporting goods store. According to the report, a BATF agent
interviewed Hesterly. Hesterly told the agent that his home
had been burglarized and the gun was stolen. Included with
the BATF report was a copy of a police report of the
Fitchburg, Wisconsin police department’s investigation of
the burglary. The Fitchburg police report noted an interview
with Hesterly. In that interview Hesterly told a Fitchburg
police officer that he believed Stinson was the perpetrator of
the burglary.
  On October 8, 2002, Gillaum filed a motion for a new trial
pursuant to Rule 33 of the Federal Rules of Criminal
Procedure. Gillaum argued that the BATF report constituted
exculpatory evidence the government failed to turn over in
violation of its obligations under Brady v. Maryland, 373 U.S.
83, 87 (1963). On February 19, 2003, the district court denied
Gillaum’s motion.
No. 02-4015                                                  7

  While Gillaum’s motion was pending, the district court
entered a judgment of conviction. Gillaum was sentenced to
188 months in prison. Gillaum’s prison sentence is to be
followed by five years of supervised release.
  Gillaum is eligible for such a substantial sentence because
he has previously been convicted of aggravated battery and
attempted robbery in Cook County, Illinois and armed rob-
bery and possession with intent to deliver cocaine in Dane
County, Wisconsin. A defendant who is found guilty of
possession of a firearm in violation of 18 U.S.C. § 922(g) and
has at least three prior convictions that are considered either
a “violent felony” or a “serious drug offense” is subject to a
mandatory minimum sentence of fifteen years and a
maximum sentence of life. 18 U.S.C. § 924(e). If a defendant
does not have at least three such prior convictions he is
subject to a statutory maximum of ten years’ imprisonment.
18 U.S.C. § 924(a)(2).


                       II. Discussion
  Gillaum raises several issues on appeal. First, he argues
that the forcible entry by the task force into his apartment
was unreasonable and violated his right under the Fourth
Amendment to be free from unreasonable searches. Gillaum
argues that the remedy for this violation should be the
suppression of evidence uncovered in the search, namely,
the handgun and ammunition. Second, Gillaum argues that
his second interview with Greiber (in the interview in
Gillaum’s bedroom) was not voluntary and violated his
right against self-incrimination. Gillaum argues that the
remedy for this violation is the suppression of his statement
to Greiber that he handled the handgun. Third, Gillaum
argues that he is entitled to a new trial because the govern-
ment failed to promptly provide him with a copy of the
8                                                 No. 02-4015

BATF report. Fourth, Gillaum challenges the length of his
sentence. He argues that, because his Illinois convictions
were discharged and certain of his civil rights had been
restored, these convictions cannot be counted toward the
three necessary for him to be subject to the sentence en-
hancement of 18 U.S.C. § 924(e)(1). Finally, Gillaum argues
that 18 U.S.C. § 922(g)(1) represents an unconstitutional
exercise of Congress’s power under the Commerce Clause
of the United States Constitution.


A. The Forcible Entry
  Gillaum first argues that the task force failed to wait a
reasonable period of time after announcing its presence and
forcibly entering his apartment. According to Gillaum, the
sound of footsteps for a limited period of time (three to five
seconds) was insufficient to justify a forcible entry. The
district court, adopting the magistrate judge’s report and
recommendation, found that the sound of footsteps moving
laterally obviated the need to wait a reasonable period of
time after a knock and announce.
  We review the district court’s factual findings for clear
error in deciding a motion to suppress. United States v. Jones,
208 F.3d 603, 606 (7th Cir. 2000). In doing so, “we must keep
in mind that ‘our inquiry is factually based and requires that
we give particular deference to the district court that had
the opportunity to hear the testimony and observe the
demeanor of the witness.’ ” Id. (quoting United States v.
Williams, 945 F.2d 192, 195 (7th Cir. 1991)). This deference is
equally applicable where credibility determinations have
been made by a magistrate judge and the report and
recommendation of the magistrate judge have been adopted
by the district court. Legal determinations (including
whether facts constitute exigent circumstances) of the
No. 02-4015                                                    9

district court justifying its decision to deny a motion to
suppress are subject to de novo review. Id. (citing United
States v. Adames, 56 F.3d 737, 747 (7th Cir. 1995)); United
States v. Howard, 961 F.2d 1265, 1267 (7th Cir. 1992).
  “[T]he method of [a law enforcement] officer’s entry into a
dwelling [is] among the factors to be considered in assessing
the reasonableness of a search or seizure.” Wilson v. Arkan-
sas, 514 U.S. 927, 934 (1995); United States v. Espinoza, 256
F.3d 718, 723 (7th Cir. 2001) cert. denied, 534 U.S. 1105 (2002).
Absent exigent circumstances, law enforcement officers
must knock on the entry door of a dwelling and “announce
their identity and intention before attempting forcible
entry.” Id. (citing Wilson, 514 U.S. at 934). This court has
recognized that “a necessary corollary of the knock and
announce requirement is that officers must wait a reason-
able amount of time after announcing their intention to
serve a search warrant before attempting a forcible entry.”
Id. (citing Jones, 208 F.3d at 609-10).
  In this case, however, the appropriate inquiry is not
whether Anderson waited a reasonable time before ordering
the forcible entry into the apartment. Rather, the question is
whether the sound of footsteps moving laterally in relation
to the entry door was sufficient to excuse the task force from
                                       3
waiting a reasonable period of time. In other words, did
exigent circumstances exist that justified disregarding the
knock and announce requirement?


3
  This case is not, therefore, governed by the recent decision of
the Supreme Court in United States v. Banks, 540 U.S. ___ (2003).
In that case, the Supreme Court held that 15-20 seconds was a
sufficient period of time for the police to wait when executing a
knock and announce warrant without hearing any noise or move-
ment before forcibly entering the apartment of a suspected drug
dealer. In this case there was an intervening act—the sound of
footsteps inside the apartment not moving towards the door.
10                                                No. 02-4015

  This court has held that “[e]xigent circumstances exist . . .
when a suspect’s awareness of the search would increase the
danger to police officers or others, or when an officer must
act quickly to prevent the destruction of evidence.” Howard,
961 F.2d at 1267 (quoting United States v. Singer, 943 F.2d
758, 762 (7th Cir. 1991)). Whether such exigent circum-
stances exist “must be viewed ‘from the totality of circum-
stances known to the officers at the time [of the forcible
entry].’ ” Id. (quoting United States v. Lindsey, 877 F.2d 777,
781 (9th Cir. 1989)).
  On the basis of the record before us, we cannot conclude
that the factual findings of the district court were in error.
The magistrate judge found Anderson to be a credible wit-
ness and concluded that Anderson honestly believed that he
was hearing lateral movement. Moreover, we conclude that
exigent circumstances existed that justified Anderson’s
order. Taking into consideration only those facts known to
Anderson at the time he ordered the forcible entry, the
sound of footsteps coming from inside the apartment and
not moving closer to the entry door was sufficient for
Anderson to order the forcible entry and disregard the
knock and announce requirement.
  The search warrant was for drugs, specifically cocaine. Of
course, drugs, particularly cocaine, are the quintessential
form of evidence that may be easily destroyed. Anderson
testified that he was familiar with the layout of the apart-
ment and knew that the bathroom, the likely scene of any
attempt at destroying evidence, was located to one side of
the entry door. Given this, the movement in the apartment,
from one side of the apartment to the other, could have
indicated an attempt to destroy evidence. The fact that
Anderson’s fears were not realized, that the footsteps were
those of a 13-year-old girl, is immaterial. Anderson could
not have known who was moving in the apartment. Given
No. 02-4015                                                 11

the layout of the apartment and the evidence that was the
subject of the warrant, Anderson was justified in believing
that someone might be attempting to destroy evidence. He
was, therefore, justified in ordering the forcible entry into
the apartment.
  Moreover, even if we determined that the forcible entry of
the task force into Gillaum’s apartment violated Gillaum’s
rights under the Fourth Amendment, he would not be
entitled to suppression of the handgun. This court has held
that suppression is not the proper remedy for a violation of
the knock and announce rule. See United States v. Langford,
314 F.3d 892, 894 (7th Cir. 2002), cert. denied, ___ U.S. ___ ,
2003 WL 21696159 (2003).


B. Gillaum’s Interrogation
   Gillaum next argues that his statements to Greiber, par-
ticularly his statements that he knew the handgun was in
the apartment and that he had handled the handgun, should
be suppressed as they were obtained in violation of his
Fourth and Fifth Amendment rights. Because we have
concluded that Gillaum’s Fourth Amendment rights were
not violated, we consider only the Fifth Amendment chal-
lenge. Whether a confession or statement to the police is
voluntary is a matter of law that this court reviews de novo.
United States v. Jordan, 223 F.3d 676, 683 (7th Cir. 2000)
(quoting United States v. D.F., 115 F.3d 413, 419 (7th Cir.
1997)). However, this court reviews “the determination of
historical facts of the case . . . for clear error.” Id.
  Gillaum argues that Greiber violated his Fifth
Amendment right to remain silent. Gillaum maintains that
he invoked his right to remain silent by allegedly telling
Greiber after the interrogation in the bathroom that he did
not want to talk to Greiber anymore. Because Gillaum told
12                                                No. 02-4015

Greiber he no longer wished to talk, “it was incumbent
upon the police to scrupulously honor [his] assertion of his
right to remain silent.”
   Gillaum principally relies on the United States Supreme
Court’s decision in Michigan v. Mosley, 423 U.S. 96 (1975). In
Mosley, the Court held that the admissibility of statements
obtained after a defendant invokes his right to remain silent
is dependent on whether the defendant’s right was “scru-
pulously honored.” 423 U.S. at 103. The Court set forth
several nonexclusive factors to determine whether interro-
gation was properly resumed. Id. These factors include “an
inquiry into the amount of time that lapsed between
interrogations; the scope of the second interrogation;
whether new Miranda warnings were given; and the degree
to which police officers pursued further interrogation once
the suspect had invoked his right to silence.” United States
v. Schwensow, 151 F.3d 650, 658 (7th Cir. 1998) (citing Mosley,
423 U.S. at 104-05).
   Gillaum’s argument that his right to remain silent was not
“scrupulously honored” has a fatal defect: he never invoked
his right to remain silent. The magistrate judge heard the
testimony of Greiber and Gillaum. Greiber testified that
Gillaum did not invoke his right to remain silent. Gillaum
testified that he did invoke his right to remain silent. The
magistrate judge, with the advantage of having the wit-
nesses before him, made an explicit credibility determina-
tion finding that Gillaum never invoked his right to remain
silent. The district court adopted the report and recommen-
dation of the magistrate judge. That finding is supported by
the record and is not clearly erroneous. See United States v.
Huerta, 239 F.3d 865, 871 (7th Cir. 2001) (quoting United
States v. Hardamon, 188 F.3d 843, 848 (7th Cir. 1999)) (“Under
the clearly erroneous standard, ‘if two permissible views
exist, the fact-finder’s choice between them cannot be clearly
No. 02-4015                                                 13

erroneous.’ ”); id. at 872 (defendant made no showing that
a district court’s credibility determination was “exceedingly
improbable; she merely presents a contradictory statement
of facts. That is not enough.”).
  Gillaum also argues that his confession was not voluntary
because of the coercive atmosphere of the interview.
Gillaum argues that the forcible entry of the task force into
his bedroom where he was sleeping, early in the morning,
the first interrogation in a small bathroom, his diabetic
condition and low blood pressure, together with statements
by Greiber that Gillaum would be better off if he provided
information concerning another drug dealer and that his
wife would be taken into custody if Gillaum did not coop-
erate, contributed to an atmosphere that made his state-
ments to Greiber involuntary under the totality of circum-
stances.
   This court has held that “[a] confession is voluntary if, in
the totality of circumstances, it is the ‘product of a rational
intellect and free will and not the result of physical abuse,
psychological intimidation, or deceptive interrogation tac-
tics that have overcome the defendant’s free will.’ ” Huerta,
239 F.3d at 871 (quoting United States v. Dillon, 150 F.3d 754,
757 (7th Cir. 1998)). “[C]oercive police activity is a ‘neces-
sary predicate to the finding that a confession is not “vol-
untary” within the meaning of the Due Process Clause of
the Fourteenth Amendment.’ ” Id. (quoting Colorado v.
Connelly, 479 U.S. 157, 167 (1986)). Factors relevant to a
determination that police conduct is coercive include “the
defendant’s age, education, intelligence level, and mental
state; the length of the defendant’s detention; the nature of
the interrogations; the inclusion of advice about constitu-
tional rights; and the use of physical punishment, including
deprivation of food or sleep.” Id.
14                                               No. 02-4015

  Considering these factors, we conclude that Gillaum’s
statements to the police were voluntary. Gillaum was thirty-
seven at the time of his arrest, and from past arrests was
personally familiar with the criminal justice system. He was
read the Miranda warnings and was asked whether he
understood the warnings. Gillaum told Greiber he un-
derstood the warnings, and told Greiber that he had been
arrested on five or six previous occasions and had the
warnings read to him. Prior to his interrogation, members
of the task force learned that Gillaum was diabetic and
asked Gillaum if he was feeling all right and if he needed
insulin or something to eat. Gillaum was also told to tell
someone if he developed problems. Gillaum indicated that
he did not need his medication.
  Additionally, both interrogations together lasted less than
45 minutes and Gillaum was not handcuffed while being
questioned. Greiber testified that Gillaum was coherent and
did not appear to be under the influence of drugs or alcohol.
Greiber also testified (and Gillaum does not dispute) that he
did not use physical force or yell at Gillaum.
  The parties differ as to whether Greiber threatened
Gillaum. Gillaum, as indicated above, claims that Greiber
threatened to take Mary into custody and promised to en-
sure Gillaum was treated leniently if he provided informa-
tion concerning a drug dealer. Greiber testified that he never
threatened Gillaum. Greiber testified that although he did
ask if Gillaum was willing to cooperate and talk about the
other drug dealer, Gillaum was not willing to provide any
information and Greiber did not suggest that Gillaum
would be treated more favorably if he cooperated.
  Once again, the magistrate judge who received this tes-
timony chose to accept Greiber’s version of events and we
cannot say that this decision was clearly erroneous. Under
No. 02-4015                                                    15

the totality of circumstances, Gillaum’s statements to
Greiber were voluntary.


C. The Disclosure of the BATF Report
  Gillaum next argues that because the government failed
to disclose the BATF report entitles him to a new trial be-
cause the BATF report constitutes newly discovered evi-
dence or because the failure of the government to disclose
the report constitutes a Brady violation. Gillaum argues that
the report corroborates his testimony and the testimony of
two of his children that Stinson brought the gun into the
apartment and sold it to Ross. The district court held that
Gillaum had not shown that the report was material or that
the evidence would have been favorable to him and thus
denied Gillaum’s motion for a new trial.
  The decision to grant a new trial is committed “to the
sound discretion of the trial judge.” United States v. Woolfolk,
197 F.3d 900, 904 (7th Cir. 1999). This court approaches
motions for a new trial “with great caution and [is] wary of
second guessing the determinations of both judge and jury.”
Id. (quoting United States v. DePriest, 6 F.3d 1201, 1216 (7th
Cir. 1993)). To be entitled to a new trial on the basis of
newly discovered evidence, a defendant must show: (1) the
defendant became aware of the evidence only after trial; (2)
the defendant could not, by exercising due diligence, have
discovered the evidence sooner; (3) the evidence is material;
and (4) in the event of a new trial, the evidence would
probably lead to an acquittal. United States v. McClurge, 311
F.3d 866, 874 (7th Cir. 2002), cert. denied, U.S. 1046, 123 S. Ct.
2101 (2003). Where the defendant alleges a Brady violation,
the defendant is entitled to a new trial when the defendant
can establish: “(1) that the prosecution suppressed evidence;
(2) that the evidence was favorable to the defense; and (3)
16                                                 No. 02-4015

that the evidence was material to an issue at trial.” United
States v. Silva, 71 F.3d 667, 670 (7th Cir. 1995).
   We address here only the materiality of the BATF re-
port—the probability that the presentation of the report
would have led to a different outcome in the trial. As this
court has held, “[e]vidence is material [under Brady] only if
there is exists a ‘reasonable probability’ that its disclosure to
the defense would have changed the result of the trial.”
United States v. Irorere, 228 F.3d 816, 829 (7th Cir. 2000). The
question is “whether in [the absence of the suppressed evi-
dence, the defendant] received a fair trial, understood as a
trial resulting in a verdict worthy of confidence. A ‘reason-
able probability’ of a different result is accordingly shown
when the government’s evidentiary suppression ‘under-
mines confidence in the outcome of the trial.’ ” Kyles v.
Whitley, 514 U.S. 419, 434 (1985) (quoting United States v.
Bagley, 473 U.S. 667, 678 (1985)). “[T]he effect that a particu-
lar piece of evidence is likely to have had on the outcome of
a trial must be determined in light of the full context of the
weight and credibility of all evidence actually presented at
trial.” Silva, 71 F.3d at 670.
  In this case, the question for the jury was whether
Gillaum, a convicted felon, possessed the handgun. The
critical evidence at trial was the testimony of Gillaum and
Greiber. Greiber testified that Gillaum told him that he
knew the gun was in the bedroom, he had handled the gun,
and had cycled ammunition through it. Gillaum testified
that he had not made these statements to Greiber. Gillaum
also testified that the gun belonged to Ross and that he had
ordered Ross to get the gun out of his apartment. As the
government points out, and as the district court noted in its
decision to deny Gillaum’s motion, the government never
challenged Gillaum’s testimony concerning how the gun
came to Gillaum’s apartment.
No. 02-4015                                                     17

   Had the BATF been properly disclosed to the defense,
there would not have been a reasonable probability the re-
                                                  4
port would have changed the outcome of trial. In this case,
the history of the gun prior to entering Gillaum’s apartment
is immaterial. Put differently, a jury could have considered
the BATF report, found it persuasive, and still reached the
same decision. The BATF report, if accurate (the police
report attached to the BATF report only recited Hesterly’s
belief that the gun was stolen by Stinson), corroborates only
a portion of Gillaum’s presentation, that Jori Stinson stole
the handgun, an issue the government did not need to
dispute. Cf. United States v. Thomas, 321 F.3d 627, 634 (7th
Cir. 2003) (“[T]he government is not required to show how
[a defendant] acquired the firearm, just that he had posses-
sion of one. Even if he held a gun only to inspect it, [the
defendant] would be guilty under 18 U.S.C. § 922(g).”);
United States v. Lane, 267 F.3d 715, 718 (7th Cir. 2001)
(“Physical control over a gun is remarkably easy to effect.”).
The report adds nothing to the issue in dispute— that
Gillaum had possession of the handgun. Evidence that
corroborates a portion of a defendant’s story that is not
directly relevant to the crime charged does not justify a
finding of materiality under Brady. Duest v. Singletary, 967
F.2d 472, 479 (11th Cir. 1992), vacated on other grounds, 507
U.S. 1048 (1993); see also Lingle v. Iowa, 195 F.3d 1023, 1026
(8th Cir. 1999) (holding that medical report was not material
for Brady purposes where report, at best, showed lack of
vaginal penetration of sexual abuse victim; penetration was
not necessary for conviction of sexual abuse of a minor

4
  We do not mean to suggest that the government’s actions were
proper. Like the district court, we find it difficult to understand
why the government failed to turn over the burglary report to
Gillaum. We only suggest that here, the failure does not merit a
new trial for Gillaum.
18                                              No. 02-4015

under Iowa law); United States v. Booz, 451 F.2d 719, 725 (3d
Cir. 1971) (finding no Brady violation where withheld
statements corroborated a portion of defendant’s story
related to the defendant’s whereabouts in the hours after the
time of crime but did not corroborate the portion of the
defendant’s story involving the defendant’s whereabouts at
the time of the crime). There is not a reasonable probability
that the BATF report would have changed the outcome
under Brady. Thus it is not probable that the introduction of
the BATF report in a new trial would lead to an acquittal
under Rule 33.


D. The Calculation of Gillaum’s Sentence
  We next turn to Gillaum’s argument concerning the cal-
culation of his sentence. Gillaum argues that the district
court improperly used two Illinois convictions to reach the
three necessary for Gillaum to be considered an “armed
career criminal” subjecting him to a sentence enhancement
under 18 U.S.C. § 924(e)(1). The district court rejected
Gillaum’s argument, counted the convictions, and sentenced
Gillaum to a prison sentence of 188 months.
  Under 18 U.S.C. § 924(e)(1), a defendant found guilty
of violating any provision of 18 U.S.C. § 922 “and who has
three previous convictions . . . for a violent felony or a
serious drug offense, or both” shall be sentenced to a man-
datory minimum prison sentence of fifteen years. This adds
at least five years to what he would have otherwise re-
ceived, for without three such prior convictions the sta-
tutory maximum is ten years’ imprisonment. 18 U.S.C.
§ 924(a)(2). Some convictions, however, are excluded from
this enhancement formula. Section 921(a)(20) of Title 18
provides, in part, that:
No. 02-4015                                                     19

    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, pos-
    sess, or receive firearms.
18 U.S.C. § 921(a)(20). Thus, unless the defendant has been
put on notice that he may not “ship, transport, possess, or
receive firearms,” a conviction does not count as one of the
three necessary for an enhanced sentence when the defen-
dant “has had civil rights restored.”
   A defendant’s civil rights are generally restored in one of
two ways. In some states, upon the completion of a criminal
defendant’s sentence, all or some of the defendant’s civil
rights are restored by the operation of statute. In other
states, however, the defendant is given documentary evi-
                                             5
dence that his civil rights are restored. This court has held
that, where a criminal defendant is given a formal notice of
the restoration of civil rights, a court’s inquiry is limited to
the contents of that document. United States v. Glaser, 14 F.3d
1213, 1218 (7th Cir. 1994) (“When the state gives [a] person
a formal notice of the 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.”)
(emphasis added). If the document specifically states that he
cannot possess or use a firearm, that civil right is obviously
not restored. But if the document restores the defendant’s


5
   As we discuss below, in this case Illinois purported to do both.
It gave Gillaum a discharge order stating that two of his civil
rights were restored. In addition, however, Illinois’s Code re-
stores, with some exceptions (not important here), all of a
defendant’s civil rights upon completion of his sentence.
20                                                No. 02-4015

civil rights but does not provide that the defendant may not
possess firearms, the underlying conviction cannot count
towards sentence enhancement. Id. This court has explained
the rationale as follows:
     If the state sends the felon a piece of paper 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 cannot be the basis of a federal
     prosecution. A state must tell the felon point blank that
     weapons are not kosher. The final sentence of
     § 921(a)(20) cannot logically mean that the state
     may dole out an apparently-unconditional restoration
     of rights yet be silent so long as any musty statute
     withholds the right to carry guns. Then the state never
     would need to say a peep about guns; the statute would
     self-destruct. It must mean, therefore, that the state
     sometimes must tell the felon that under state law he is
     not entitled to carry guns. . . . When, however, the state
     sends no document granting pardon or restoring rights,
     there is no potential for deception, and the question
     becomes whether the particular civil right to carry guns
     has been restored by law.
Erwin, 902 F.2d at 512-13 (emphasis in original).
  Section 921(a)(20) has been described by this court as
“an anti-mousetrapping rule.” United States v. Erwin, 902
F.2d 510, 512 (7th Cir. 1990). The notice requirement “is
designed to prevent states from deceiving ex-convicts into
believing they have the right to carry guns.” United States v.
Wagner, 976 F.2d 354, 355 (7th Cir. 1992). Given these con-
siderations, we determine which civil rights Gillaum had
restored.
 On October 27, 1983, Gillaum received an “Order For
Discharge” signed by the Governor of Illinois (the “Order”).
The Order stated that Gillaum was “finally discharged”
No. 02-4015                                                        21

from the convictions for attempted robbery and aggravated
battery. The Order also stated that Gillaum’s “rights to vote
and administer estates are regained.” There was no notice
in the Order that Gillaum could not possess a firearm.
   Gillaum argues that the Order restored his civil rights but
did not give him notice that he could not possess a firearm.
As a result, Gillaum argues, the Illinois convictions cannot
be considered qualifying felonies for sentence enhancement.
If the Illinois convictions are not considered, Gillaum would
not have the requisite three prior qualifying felonies and
would not, therefore, be subject to the mandatory 15-year
sentence.
  For the purposes of § 921(a)(20), however, the Order did
not sufficiently restore Gillaum’s civil rights. In United States
v. Williams, 128 F.3d 1128, 1134 (7th Cir. 1997), this court
held that a defendant has had his civil rights restored for the
purposes of § 921(a)(20) when he has had restored his rights
                                              6
to vote, hold office, and serve on a jury. See also United
                                                           7
States v. McKinley, 23 F.3d 181, 183 (7th Cir. 1994). The


6
   In the briefs to this court and at oral argument neither party
cited to, or discussed, our decision in Williams, 128 F.3d at 1134
a case that is dispositive of the issue on appeal. We remind both
parties of the necessity of providing this court with citations to,
and discussion of, the binding authority necessary to resolve the
issues before the court, particularly where such authority is
adverse to the position taken by a party in its appeal. See, e.g.,
Model Rules of Prof’l Conduct R. 3.3(a)(2).
7
  This court’s focus on these three civil rights is supported by the
decisions of at least five other circuits. United States v. Blodgett,
130 F.3d 1, 3 (1st Cir. 1997); United States v. Essig, 10 F.3d 968, 975
(3d Cir. 1993); United States v. Thomas, 991 F.2d 206, 214 (5th Cir.
1993); United States v. Driscoll, 970 F.2d 1472, 1476 (6th Cir. 1992),
abrograted on other grounds by, Hampton v. United States, 191 F.3d
                                                         (continued...)
22                                                   No. 02-4015

Order restored only the rights to vote and administer
estates, the latter being of no consequence for this analysis.
Because the Order did not also restore the rights to serve on
a jury and hold elective office, the Order did not restore
Gillaum’s civil rights and the convictions were properly
counted.
  Although the Order did not benefit Gillaum’s challenge to
his sentence, a question remains: what would have been the
outcome had Gillaum not received the Order? Under Illinois
law as it has existed at all relevant times to our analysis, a
criminal defendant’s rights to vote and hold office are
automatically restored to him at the completion of his
prison sentence. 730 ILCS 5/5-5-5(b) & (c). Further, by
virtue of his conviction, a criminal defendant loses no other
civil rights, with the exception of the right to hold licenses
to engage in certain occupations and the right to hold public
employment after conviction for certain election-related
offenses. 730 ILCS 5/5-5-5(a) (“Conviction and disposition
shall not entail the loss by the defendant of any civil rights,
except under this Section and Sections 29-6 and 29-10 of The
Election Code, as now or hereafter amended.”). Gillaum’s
Order states that his right to vote and administer estates are
regained. This could be read to imply that only those rights
were restored. But according to Illinois law, all of the civil
rights important to our analysis (voting, holding office, and
serving on a jury), were automatically restored. Since our
precedent instructs us to limit our analysis to the Order, it
might seem, at first, that for sentencing purposes Gillaum
would have been better off with no order, if without it he
had these three civil rights restored.


7
  (...continued)
695, 702 (6th Cir. 1999); United States v. Dahms, 938 F.2d 131, 133
(9th Cir. 1991).
No. 02-4015                                                      23

   Ultimately, however, Gillaum would not have benefitted
by not receiving a written order. This court has held that
even though the Illinois Code automatically restores all of
an ex-convict’s civil rights, the Code’s separate prohibition
on the possession of a firearm by a convicted felon, 720 ILCS
5/24-1.1, gives the express notice required by § 921(a)(20) to
permit a court to count a conviction. Erwin, 902 F.2d at 512.
This is the case even though the restoration of a convicted
felon’s civil rights and the prohibition on the carrying of
firearms by a convicted felon are contained in different
sections of the Illinois code. Id. at 513. Thus, if for some
reason we were to disregard Gillaum’s Order and instead
apply the pertinent provisions of the Illinois Code, he would
                                              8
still be exposed to the enhanced sentence. We would find
that although his civil rights (the three specified in Williams,
128 F.3d at 1134) were restored, we would also find that as
a convicted felon he was prohibited from possessing or
carrying a firearm.
  In sum, looking just at the Order, Gillaum did not have
the necessary civil rights restored. Looking to the Illinois
Code, although Gillaum did have all three necessary civil
rights restored, the Illinois Code also put Gillaum on notice
that he could not carry a firearm, as § 921(a)(20) requires.
Either way, the Illinois convictions were properly counted.


E. The Constitutionality of the Federal Felon-In-Posses-


8
  The situation would be different were the Illinois Code silent
on whether a convicted felon could possess a firearm. In such a
case, because Gillaum had all three of his civil rights restored and
he was not given notice that he could not carry a firearm, the
convictions could not be counted.
24                                                No. 02-4015

     sion Statute
  Finally, Gillaum argues that 18 U.S.C. § 922(g)(1) is an
unconstitutional exercise (facially and as applied to him) of
Congress’s power under the Commerce Clause of the
United States Constitution. Gillaum concedes, however, that
this court has previously rejected this argument. See, e.g.,
United States v. Lemons, 302 F.3d 769 (7th Cir.), cert. denied,
537 U.S. 1049 (2002); United States v. Mitchell, 299 F.3d 632
(7th Cir. 2002), cert. denied, sub nom., Peete v. United States,
537 U.S. 1130 (2003); United States v. Wesela, 223 F.3d 656
(7th Cir. 2000). He has raised the issue on appeal only so as
to preserve the argument in the event of a change in the law.
We note that Gillaum has raised this argument and we
decline to revisit our well-established precedents.


                       III. Conclusion
  For the foregoing reasons, the decisions of the district
court are AFFIRMED.

A true Copy:
        Teste:

                           _____________________________
                            Clerk of the United States Court of
                              Appeals for the Seventh Circuit


                     USCA-02-C-0072—6-23-04
