                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a1255n.06

                                           No. 11-1847                                 FILED
                                                                                   Dec 06, 2012
                             UNITED STATES COURT OF APPEALS                  DEBORAH S. HUNT, Clerk
                                  FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )       ON APPEAL FROM THE
       Plaintiff-Appellee,                               )       UNITED STATES DISTRICT
                                                         )       COURT FOR THE WESTERN
v.                                                       )       DISTRICT OF MICHIGAN
                                                         )
RANDY SANFORD,                                           )                          OPINION
                                                         )
       Defendant-Appellant.                              )
                                                         )
                                                         )




BEFORE:        COLE and KETHLEDGE, Circuit Judges; and THAPAR, District Judge.*

       COLE, Circuit Judge. Defendant-Appellant Randy Sanford appeals the denial of his motion

to dismiss his indictment. For the following reasons, we AFFIRM.

                                                I.

       On June 9, 2010, Michigan police discovered that Randy Sanford possessed multiple

firearms. This discovery, along with Sanford’s two prior domestic assault convictions in Michigan,

led a grand jury to indict Sanford for violating 18 U.S.C. § 922(g)(9), which makes it unlawful for

a person who has been convicted of a misdemeanor crime of domestic violence to possess any

firearm.



       *
       The Honorable Amul R. Thapar, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
No. 11-1847
United States v. Sanford

       Sanford moved to dismiss the indictment under 18 U.S.C. § 921(a)(33)(B)(ii), which says:

       A person shall not be considered to have been convicted of [a misdemeanor crime of
       domestic violence] for purposes of this chapter if the conviction . . . is an offense for
       which the person . . . has had civil rights restored (if the law of the applicable
       jurisdiction provides for the loss of civil rights under such an offense) unless the
       pardon, expungement, or restoration of civil rights expressly provides that the person
       may not ship, transport, possess, or receive firearms.

Sanford argued that his prior convictions should not count as predicate offenses because his civil

rights had been restored upon his release from incarceration. The district court denied Sanford’s

motion because it reasoned that his convictions restricted his ability to transport a firearm.

       Sanford pleaded guilty, but reserved the right to appeal the judgment “on the basis that his

prior conviction for a misdemeanor crime of domestic violence does not meet the definition set forth

in [18 U.S.C. § 921(a)(33)].” The district court sentenced Sanford to one month’s imprisonment,

two years of supervised release, and a $1000 fine. Sanford thereafter filed this appeal.

                                                  II.

       When reviewing a motion to dismiss an indictment, we review the district court’s legal

conclusions de novo. Our standard of review for factual findings in such cases is “somewhat

unclear,” United States v. Grenier, 513 F.3d 632, 635-36 (6th Cir. 2008) (collecting cases ), but that

does not matter here since Sanford does not challenge any of the district court’s factual findings.

       The parties do not dispute that Sanford’s domestic assault convictions under Mich. Comp.

Laws § 750.81(2) qualify as crimes of “domestic violence” (emphasis added) as required by 18

U.S.C. § 922(g)(9). In United States v. Castleman, No. 10-5912, — F.3d —, 2012 WL 4096234

(Sept. 19, 2012), this Court held that to categorically meet the definition of “misdemeanor crime of


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No. 11-1847
United States v. Sanford

domestic violence” in § 921(a)(33)(A), a state crime must require “violent force, that is, force

capable of causing physical pain or injury to another person.” Castleman, 2012 WL 4096234, at *4;

Johnson v. United States, 130 S. Ct. 1265, 1271 (2010). We do not need to decide whether

Castleman would apply in this case because Sanford waived his opportunity to argue that his prior

convictions were insufficiently violent to qualify as misdemeanor crimes of domestic violence for

purposes of 18 U.S.C. § 922(g)(9). We do not always apply waiver in cases where “intervening case

authority might change the result,” Planned Parenthood Cincinnati Region v. Taft, 444 F.3d 502,

516 (6th Cir. 2006), but we find it equitable to apply waiver here because the argument in question

had already been raised in several circuits with some success. Sanford had adequate notice that the

argument existed and was viable. See United States v. Hays, 526 F.3d 674 (10th Cir. 2008) (holding

battery under Wyoming law did not necessarily qualify as a misdemeanor crime of domestic

violence); United States v. Nason, 269 F.3d 10 (1st Cir. 2001) (holding all Maine assault convictions

against a domestic partner qualified); United States v. White, 606 F.3d 144 (4th Cir. 2010) (holding

Virginia domestic assault and battery statute did not qualify).

       Sanford’s argument in this appeal instead focuses on the “rights restoration” exception

whereby a person is not considered to have been convicted of a misdemeanor crime of domestic

violence for purposes of 18 U.S.C. § 922(g)(9) “if the conviction . . . is an offense for which the

person . . . has had civil rights restored . . . .” 18 U.S.C. § 921(a)(33)(B)(ii). When Sanford was

released he recovered certain civil rights, such as his right to vote under Mich. Comp. Laws

§ 168.758b. Sanford therefore contends that his civil rights were fully restored upon release from



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United States v. Sanford

incarceration and his domestic assault convictions cannot serve as predicate offenses for the purposes

of 18 U.S.C. § 922(g)(9).

        However, the “rights restoration” exception has an “unless clause”: the exception applies

“unless the . . . restoration of civil rights expressly provides that the person may not ship, transport,

possess, or receive firearms.” 18 U.S.C. § 921(a)(33)(B)(ii). Under Michigan law, Sanford’s

domestic assault convictions made him ineligible for a concealed weapons permit for eight years

after each conviction. Mich. Comp. Laws § 28.425b(7)(h)(xv). The government contends that

Sanford’s ineligibility for a concealed weapons permit restricts his ability to “transport” a firearm

sufficiently to trigger the “unless clause.”

        Sanford’s ineligibility for a concealed weapons permit severely hindered, but did not

completely eliminate, his ability to transport a handgun. Under Michigan law, a person without a

concealed weapons permit may “not carry a pistol concealed on or about his or her person, or,

whether concealed or otherwise, in a vehicle operated or occupied by the person, except in his or her

dwelling house, place of business, or on other land possessed by the person, without a license to

carry the pistol as provided by law . . . .” Mich. Comp. Laws § 750.227(2). Mich. Comp. Laws

§ 750.231a(1)(d) provides an exception to that rule, allowing a person to transport “a pistol for

lawful purpose” if the pistol “is licensed by the owner or occupant of the motor vehicle,” unloaded,

and in a closed case in the trunk. The statute specifies seven lawful purposes, such as, for example,

transportation to a target shooting area or a place of sale. See Mich. Comp. Laws § 750.231a(2)(b)

(specifying additional purposes). On the other hand, with a concealed weapons permit, Sanford



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No. 11-1847
United States v. Sanford

could “[c]arry a pistol in a vehicle, whether concealed or not concealed, anywhere in [Michigan,

except as otherwise provided by law].” Mich. Comp. Laws § 28.425c(2).

        In isolation, the text of 18 U.S.C. § 921(a)(33)(B)(ii) is ambiguous as to whether Sanford’s

remaining restriction triggers the “unless clause,” but Supreme Court precedent resolves the

ambiguity, compelling us to hold that Sanford’s ineligibility for a concealed weapons permit restricts

his ability to transport firearms sufficiently to trigger the “unless clause.”

        In Caron v. United States, 524 U.S. 308 (1998), Gerald Caron was convicted for violating

18 U.S.C. § 922(g)(1), which makes it unlawful for a person convicted of a crime punishable by

more than one year of imprisonment to possess any firearm. Id. at 309. His sentence was enhanced

under 18 U.S.C. § 924(e), which mandates that a defendant with three violent felony convictions

receive an enhanced sentence.        Caron objected to the enhancement, arguing that a prior

Massachusetts conviction should not have been a predicate offense because of a similar “rights

restoration” exception. See Caron, 524 U.S. at 311. As in the present case, an “unless clause”

modified the exception: “[the ‘rights restoration’ exception applies] unless such . . . restoration of

civil rights expressly provides that the person may not . . . possess . . . firearms.” 18 U.S.C.

§ 921(a)(20). Massachusetts law permitted Caron to possess rifles and shotguns, but, because of his

past conviction, banned him from possessing handguns anywhere outside of his home or business.

The Supreme Court held that the restriction on Caron’s handgun possession rights was an express

restriction on his ability to possess firearms that triggered the “unless clause.”

        The Supreme Court adopted the government’s “all-or-nothing” position, under which:



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No. 11-1847
United States v. Sanford

        [A] state weapons limitation on an offender activates the uniform federal ban on
        possessing any firearms at all. This is so even if the guns the offender possessed
        were ones the State permitted him to have. The state has singled out the offender as
        more dangerous than law-abiding citizens, and federal law uses this determination
        to impose its own broader stricture.

Caron, 524 U.S. at 315. The Court rejected the dissent’s position that the “plain meaning” of the

statute “[triggers the ‘unless clause’] only when the State additionally prohibits those ex-felons from

possessing firearms altogether.” Id. at 318 (Thomas, J., dissenting). A civil rights restoration that

severely limits (but does not ban) the possession of even one type of firearm is, under Caron, one

that “expressly provides that the person may not . . . possess . . . firearms.”

        To distinguish his case from Caron, Sanford argues on appeal that the “unless clause”

“speaks only to civil rights,” such as handgun possession, and cannot be triggered by denial of

“privilege[s]” such as concealed weapons permits. The Supreme Court’s post-Caron decision in

District of Columbia v. Heller, 554 U.S. 570 (2008), suggests that a handgun possession ban, such

as the one in Caron, might infringe a civil right, whereas denial of a concealed weapons permit, as

in the present case, does not. See id. at 626. However, the restriction in Caron did not impinge on

the constitutional right announced in Heller, which was merely to possess a handgun in one’s home.

Caron was only restricted outside of his home or business. Therefore, Sanford’s attempt to

distinguish Caron as a matter of civil rights restriction, as opposed to a denial of privilege, fails.

        There are only two relevant distinctions between the Michigan and Massachusetts laws, and

neither is material: first, the latter denies a license to carry, whereas the former denies a permit to

carry a concealed weapon; and second, in Michigan, Sanford is still able, for some limited purposes,

to transport a pistol in his vehicle without the permit. Logistically, Sanford’s restrictions are similar

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No. 11-1847
United States v. Sanford

to Caron’s: Sanford is allowed to carry his firearm “in [his] dwelling house, place of business, or on

other land possessed by [him],” but his inability to obtain a concealed weapons permit denies him

the freedom to “[c]arry a pistol concealed on or about [his] person anywhere in the state.” Mich.

Comp. Laws § 750.227(2); Mich. Comp. Laws § 28.425c(2)(a). Just as the restriction in Caron was

not a blanket ban on all handgun possession, the restriction here is not a blanket ban on all pistol

transportation.

        Ultimately, Sanford does not have the same freedom to transport his firearm as a Michigan

citizen without a domestic assault record. Under Caron, this is sufficient to trigger the “unless

clause,” which requires us to affirm the district court’s judgment.

        We decline to follow an on-point, unpublished opinion from this Court, United States v.

Flores, 118 F. App’x 49 (6th Cir. 2004) (per curiam), because it fails to consider the impact of the

Michigan restriction on the ability to transport. Flores held that ineligibility for a concealed weapons

permit did not trigger the “unless clause” because it would be improper to “extend the ‘unless’

clause . . . to the additional act of concealment of a firearm.” Id. at 53. The majority appeared to

assume that Michigan’s concealed weapons permit statute governs only concealment of a firearm

and nothing more. The dissent raises the matter of transport briefly, but only in the context of

transporting concealed weapons. Id. at 54 (Daughtrey, J., dissenting) (“[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).”) (second emphasis added). Unpublished

opinions do not bind this Court, see 6th Cir. R. 32.1, and our holding does not add “concealment”

as a fifth element of the “unless clause” because Sanford’s inability to obtain the concealed weapons

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No. 11-1847
United States v. Sanford

permit burdens his ability to transport firearms, even when unconcealed in a vehicle. Applying the

Caron analysis to the “transport” prong of 18 U.S.C. § 921(a)(33), we are bound to hold that

Sanford’s ineligibility for a concealed weapons permit triggers the “unless clause” and permits his

indictment for firearm possession in violation of 18 U.S.C. § 922(g)(9).

                                                III.

       For the reasons stated above, we AFFIRM the district court’s denial of Sanford’s motion to

dismiss his indictment.




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