     Case: 17-30950      Document: 00514920319         Page: 1    Date Filed: 04/17/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit


                                      No. 17-30950
                                                                                  FILED
                                                                              April 17, 2019
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk

              Plaintiff - Appellee

v.

PAUL JOSEPH VIOLA,

              Defendant - Appellant




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:15-CR-253-1


Before HIGGINBOTHAM, ELROD, and HO, Circuit Judges.
PER CURIAM:*
       Paul Joseph Viola appeals his conviction for being a felon in possession
of firearms and ammunition. He contends that the district court erred by
excluding evidence of, and jury instructions for, Viola’s defense that he
possessed the firearms and ammunition in reliance on a state pardon. Because
his asserted defense is foreclosed by our precedent, we affirm.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                      No. 17-30950
       In the district court, Viola was tried and convicted for unlawful
possession of firearms and ammunition in violation of 18 U.S.C. § 922(g)(1).
Viola previously pleaded guilty to a Louisiana felony, for which he received an
automatic first-offender pardon after he completed his sentence. The district
court concluded that—notwithstanding the pardon—Viola’s offense qualified
as a § 922(g)(1) predicate crime under 18 U.S.C § 921(a)(20) and Caron v.
United States, 524 U.S. 308 (1998).
       Before trial, Viola moved to include non-pattern jury instructions, the
pardon, and testimony from state officials. The district court denied Viola’s
motion, concluding that Viola’s asserted defense was foreclosed by our decision
in United States v. Spires, 79 F.3d 464 (5th Cir. 1996).
       On appeal, Viola contends that he had the right to present a “mistake of
fact” defense to the jury. 1 Specifically, Viola challenges the district court’s (1)
refusal to submit Viola’s jury instructions and (2) evidentiary exclusions. We
review evidentiary rulings for abuse of discretion, though our review is
“heightened” in criminal cases. United States v. Anderson, 933 F.2d 1261,
1267–68 (5th Cir. 1991). And “[a] conviction can not be overturned for failure
to instruct the jury on a defense unless the requested but omitted instruction
has an evidentiary basis in the record which would lead to acquittal.” Spires,




       1 “To establish a violation of § 922(g)(1), the government must prove three elements
beyond a reasonable doubt: (1) that the defendant previously had been convicted of a felony;
(2) that he possessed a firearm; and (3) that the firearm traveled in or affected interstate
commerce.” United States v. Broadnax, 601 F.3d 336, 341 (5th Cir. 2010) (quoting United
States v. Guidry, 406 F.3d 314, 318 (5th Cir. 2005)). Here, despite Viola’s assertion to the
contrary, he did not preserve or present any argument contesting elements (1) or (3).
Compare Oral Argument at 4:55–6:05 with 35:00–37:25, United States v. Viola (No. 17-
30950), http://www.ca5.uscourts.gov/oral-argument-information/oral-argument-recordings.
So the only question properly before us is whether he has a defense to (2).

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                                 No. 17-30950
79 F.3d at 466 (citing United States v. Duvall, 846 F.2d 966, 971 (5th Cir. 1988)
(per curiam)).
      Although Viola characterizes his defense as a “mistake of fact,” we agree
with the district court that Viola’s core defense is entrapment by estoppel:
“The defense of entrapment by estoppel is applicable when a government
official or agent actively assures a defendant that certain conduct is legal and
the defendant reasonably relies on that advice and continues or initiates the
conduct.” Id. (collecting cases). Here, Viola wanted to present evidence that
he relied on the pardon letter and assurances from state officials that he was
allowed to possess firearms.
      Viola cannot avail himself of the entrapment-by-estoppel defense. “The
defense is a narrow exception to the general rule that ignorance of the law is
no excuse[.]” Id. And so it applies in narrow circumstances:
      To satisfy the requirements of the defense when charged with a
      federal crime, a defendant is required to show reliance either [1]
      on a federal government official empowered to render the claimed
      erroneous advice, or [2] on an authorized agent of the federal
      government who has been granted the authority from the federal
      government to render such advice.

Id. at 466–67 (emphases added) (collecting cases). Thus, the defense does not
apply when, as here, a defendant relies on a state official’s assurances to his
detriment under federal law. See id.; see also United States v. Hale, 685 F.3d
522, 542–43 (5th Cir. 2012) (per curiam) (“Neither [the Laredo Police Officer],
who [defendant] claims recruited him to work with him undercover, nor [the
Laredo Police Sergeant], who [defendant] claims knew of the undercover work,
are authorized federal government officials empowered to give advice on
federal drug laws.”).



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                                 No. 17-30950
      Because Viola asserted a non-cognizable defense, the district court did
not err by refusing to instruct the jury on, or permit evidence of, that defense.
See Spires, 79 F.3d at 466. Accordingly, we affirm.




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                                 No. 17-30950
PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring:

      As Viola has not contended that his state conviction was not a valid
predicate offense, I concur fully in our judgment affirming his convictions. I
write separately to explain the effect of the state pardon here. The issue
implicit in his assertion of equitable estoppel but not raised offers a powerful
argument for reversal of his convictions. I would leave this aside but for the
circumstances that the government advises that Viola is being prosecuted
separately in the Middle District of Louisiana based on the same state
predicate conviction. While the brevity of our per curiam opinion is merited
because of the unavailability of the entrapment of estoppel defense—the issue
Viola chose to raise to this court—we did not consider whether Viola was
effectively pardoned by the first offender pardon letter given to Viola by
Louisiana in 2011.
      On March 14, 2008, Viola pleaded guilty to a state felony charge of
possession with intent to distribute marijuana, receiving a suspended sentence
of five years and three years of supervised probation. On successfully
completing his probation, Viola received a first offender pardon letter from the
Louisiana Division of Probation and Parole. That letter explained that Viola
met all of the requirements for an automatic first offender pardon, as outlined
by La. Rev. Stat. 15:572, and provided that effective March 14, 2011, “all rights
of citizenship and franchise are restored in Louisiana,” and
      The right to receive, possess, or transport a firearm may not be
      restored unless all legal provisions are met and should be
      determined through the local law enforcement agency.

      Following the directive given to him in that pardon letter—informing
him that his local law enforcement agency should determine whether all legal
provisions were met with respect to his firearm rights—Viola reached out to
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                                   No. 17-30950
his local law enforcement official to ask if he was eligible to possess firearms.
During trial in the district court, outside the presence of the jury, Viola
proffered the testimony of two law enforcement officials who would have
explained to the jury the pardon and the steps Viola took to comply with its
terms. Defense counsel offered a summary proffer of former chief of police for
the Town of Krotz Springs, Norman Mouille. Mouille would have testified that
he knew Viola, and Viola came to him sometime in March 2011 after receiving
the pardon letter to ask if he could possess a firearm; Mouille told Viola that
given the pardon, he could legally possess a firearm. Mouille would have
testified that Viola’s father, Charles Viola (who Mouille was also acquainted
with), later approached Mouille to “double check” and “be sure” that his son
could possess firearms. Mouille would have also testified that there was
nothing in the letter that required him to confirm his understanding with
another authority, such as ATF, and that the letter gave “total discretion to a
local law enforcement officer.”
      Maria Pollack Toups, an officer with the Louisiana Department of
Corrections, Division of Probation and Parole, testified in a live proffer outside
the presence of the jury. Toups had never met Viola, and testified to the process
used by the Department of Probation and Parole to determine who would
receive a first offender pardon. She confirmed that the Department would not
send any additional information to probationers regarding firearm possession.
Toups testified that in 2016, the language in the pardon letter was changed.
Instead of directing the recipient to local law enforcement for a determination,
the revised letter provided that
      The right to receive, possess or transport a firearm may not be
      restored unless all legal provisions (refer to La. R. S. 14:95.1) are
      met. Any questions regarding these legal provisions should be
      directed to your attorney.
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                                        No. 17-30950


       Viola moved to dismiss the indictment in district court and the court
denied that motion, relying on the Supreme Court’s decision in Caron v. United
States. 1 In Caron, the Supreme Court interpreted the federal felon in
possession statute to clarify when a state’s restoration of civil rights was
effective. 2 18 U.S.C. § 922(g)(1) prohibits a person convicted of a crime
punishable by more than one year in prison from possessing a firearm. 3 A
previous conviction is not a valid predicate, however, if the offender’s civil
rights have been restored through a pardon, expungement, or other such
restoration, “unless such pardon, expungement, or restoration of civil rights
expressly provides that the person may not ship transport, possess, or receive
firearms.” 4 In Caron, the Supreme Court held that if a state places any
limitations on an offender’s right to possess a weapon, that state limitation
activates the unless clause meaning a restoration of rights is ineffective under
§ 921(a)(20). 5 In denying Viola’s motion to dismiss the indictment, the district
court reasoned that because the State of Louisiana still placed restrictions on
a felon’s right to possess a firearm, 6 those restrictions triggered the “unless
clause” of 18 U.S.C. § 922(g)(1). 7




       1  524 U.S. 308 (1998).
       2  Id. at 315–16.
        3 18 U.S.C. § 922(g)(1).
        4 18 U.S.C. § 921(a)(20).
        5 Caron, 524 U.S. at 316–17.
        6 The district court focused on the Louisiana statute precluding a convicted felon from

obtaining a concealed carry permit. La. Rev. Stat. Ann. 40:1379.3(C)(10). As the government
points out in its brief, Louisiana places an additional restriction on the ability of a convicted
felon to possess a firearm—a 10-year cleansing period during which a convicted felon cannot
possess any firearm. La. Rev. Stat. Ann. 14:95.1.
        7 Viola’s counsel confirmed at oral argument that he did not present the issue of

whether his state conviction was a valid predicate to this court on appeal.
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                                       No. 17-30950
       My colleague suggests that it is time for the Supreme Court to reconsider
Caron. Perhaps, but not in the case before us as resort to Caron was not
necessary or justified in Viola’s case. First-offender pardons are contemplated
by the Louisiana Constitution 8 and the procedure for issuing the automatic
first offender pardon is enumerated by statute. 9 As authorized by statute, the
Louisiana Department of Public Safety and Corrections, Division of Probation
and Parole sent an automatic first-offender pardon letter to Viola in 2011
informing him that “[t]he right to receive, possess, or transport a firearm may
not be restored unless all legal provisions are met and should be determined
through the local law enforcement agency.” Viola was informed that his local
law enforcement agency had the authority to determine whether all relevant
legal provisions were met. Understanding that directive, Viola asked his local
law enforcement officer, who confirmed that all legal provisions were met—he
told Viola he could possess a firearm. 10 His father confirmed that
understanding with law enforcement.


       8  La. Const. Art. 4, § 5 (E)(1) (“The governor may grant reprieves to persons convicted
of offenses against the state and, upon favorable recommendation of the Board of Pardons,
may commute sentences, pardon those convicted of offenses against the state, and remit fines
and forfeitures imposed for such offenses. However, a first offender convicted of a non-violent
crime, or convicted of aggravated battery, second degree battery, aggravated assault,
mingling harmful substances, aggravated criminal damage to property, purse snatching,
extortion, or illegal use of weapons or dangerous instrumentalities never previously convicted
of a felony shall be pardoned automatically upon completion of his sentence, without a
recommendation of the Board of Pardons and without action by the governor.”).
        9 La. Rev. Stat. Ann. 15:572 (B) & (D).
        10 I pause briefly to note that because Chief Mouille’s testimony was introduced by a

summary proffer, it is not the model of clarity. The summary proffer given by Viola’s counsel
focused on possession, and it is unclear whether law enforcement’s assurances to Viola
extended to all firearm statutes, including the concealed carry permitting restrictions placed
on convicted felons. While it is of no consequence to the disposition of the prosecution before
us, read in context of the assurances sought, Chief Mouille’s summary proffer describes an
assurance to Viola that all of his firearms rights were restored. So with respect to the
concealed carry permitting law, his assurances removed the felony conviction disqualification
from the many requirements to get a concealed carry permit. That is to say, Viola may still
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                                        No. 17-30950
        Taking the language of the pardon letter together with the proffered
testimony that Viola had received confirmation of his right to possess a gun
from a local law enforcement official (as directed), Louisiana’s restoration of
rights was fully effective, meaning there was no longer a state limitation on
his rights: the 10-year cleansing period statute did not apply and any
disqualification to receiving a concealed carry permit on the basis of a felony
conviction was removed. Louisiana’s Constitution and statutory scheme
provided for an automatic first offender pardon—the pardon that was issued
pursuant to that authority explicitly informed Viola that his local law
enforcement agency had the power to determine whether he could possess a
firearm. 11 The premise of Caron was that where a state has singled out an
offender as dangerous enough to place some limit on the offender’s ability to
possess a firearm, federal law then “uses this determination to impose its own



not be entitled to a permit for reasons separate and apart from his felony conviction, but the
operation of the pardon letter and Chief Mouille’s assurances removed that particular felony
conviction hurdle.
        11 In a footnote in its brief, the government points to State v. Eberhardt in support of

the proposition that the 10-year cleansing statute applies even where the defendant has
received an automatic first-offender pardon. State v. Eberhardt, 145 So. 3d 377, 387 n.7 (La.
2014). We do not disagree as a general rule. But there, Eberhardt received the first-offender
pardon letter—directing him to his local law enforcement agency to determine whether all
legal provisions were met—and Eberhardt did not avail himself of that option. Id. As the
Louisiana Supreme Court noted, under Louisiana law at that time, a convicted felon could
apply to the sheriff of the parish in which he resided for a permit to possess a weapon that
would give him the opportunity to possess a weapon notwithstanding the 10-year cleansing
period statute. Id. (quoting 2010 La. Acts, No. 942, § 1, effective Aug. 1, 2010) (the permitting
statute was repealed before Viola received his pardon). Eberhardt did not apply for a permit
and there is also no indication that he reached out to local law enforcement to determine
whether any legal provisions barred him from possessing a firearm. Id. So the Louisiana
Supreme Court conclusion that Eberhardt’s pardon letter did not exempt him from the state’s
10-year cleansing period statute is not inconsistent with my reading of the pardon here.
Eberhardt did not seek confirmation of his rights from local law enforcement (who were
authorized to determine whether all legal provisions were met); Viola did. Because Viola was
told by a local law enforcement agent that all legal provisions were met, Viola availed himself
of the fully effective pardon contemplated by the letter.
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                                      No. 17-30950
broader stricture”—prohibiting the offender from possessing any firearm. 12
Here, we have the inverse. Through the operation of the language in the
pardon letter, Louisiana has fully restored Viola’s rights to receive, possess,
and transport a firearm. In the face of no state limitation, Caron is
inapplicable—there can be no argument that the unless clause was triggered
or that the broader federal restriction applied. Caron is premised on the idea
that any state limitation conveys a determination of dangerousness, triggering
the broader restrictions under federal law. Here however, by the terms of the
pardon letter, Viola could not have been prosecuted under state law. Given that
there was no limitation under state law, the pardon was fully effective, the
unless clause was not triggered, and the federal ban did not apply.
       To be sure, this conclusion is limited and is a creature of the odd and
imprecise language chosen by Louisiana in its pardon letter, language that is
no longer operable after the first offender pardon letter was amended in 2016
in response to the confusion it engendered. Because Viola could not have been
prosecuted by the state—given the language of the pardon letter and the
statements of local law enforcement—his pardon was fully effective to restore
his firearm rights under state law. That the language of the pardon letter
would prevent Louisiana from prosecuting Viola is reinforced by the broader
principles of the Due Process Clause. It is a long-standing principle (though
sensibly limited) that due process prevents a state from prosecuting a
defendant who relied upon a state official’s assurance that the defendant was
acting within the law of the state 13—it is a basic fairness that an individual


       12 Caron, 524 U.S. at 315.
       13 See Raley v. Ohio, 360 U.S. 423, 425–26 (1959) (“We hold that in the circumstances
of these cases, the judgments of the Ohio Supreme Court affirming the convictions violated
the Due Process Clause of the Fourteenth Amendment and must be reversed . . . . After the
Commission, speaking for the State, acted as it did, to sustain the Ohio Supreme Court's
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                                       No. 17-30950
has fair warning of what a state intends to punish. It is worth reiterating my
agreement with our opinion today that Viola was not entitled to the estoppel
defense he seeks because he relied on a local official’s assurances to his
detriment under federal law. I refer to the teachings of Cox and Raley to
emphasize that Louisiana would not have been able to prosecute Viola under
state law—by operation of the pardon letter—meaning there was no state
limitation triggering the unless clause of 18 U.S.C. § 921(a)(20). Without such
a limitation, the indictment should have been dismissed after proper motion to
the district court. Because no such argument has been raised, I concur fully in
the court’s opinion today.




judgment would be to sanction an indefensible sort of entrapment by the State—convicting a
citizen for exercising a privilege which the State had clearly told him was available to him.”);
Cox v. Louisiana, 379 U.S. 559 (1965) (“As in Raley, under all the circumstances of this case,
after the public officials acted as they did, to sustain appellant's later conviction for
demonstrating where they told him he could ‘would be to sanction an indefensible sort of
entrapment by the State—convicting a citizen for exercising a privilege which the State had
clearly told him was available to him.’ The Due Process Clause does not permit convictions
to be obtained under such circumstances.” (internal citation omitted)).
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                                        No. 17-30950
JENNIFER WALKER ELROD, Circuit Judge, concurring:

       Paul Viola is now serving more than three years in prison for committing
a federal crime that is predicated on a state possession-of-marijuana offense
for which he was pardoned. His crime: exercising the right to self-defense by
possessing a firearm that the Chief of Police expressly told him he could
lawfully possess because of that pardon. I concur with the reasons provided in
the panel opinion for why that conviction must be affirmed by this court, but I
write separately to express my concerns with one of the precedential cases that
got us here.
       The Supreme Court’s decision in Caron v. United States 1 provided the
basis for the district court’s determination that the predicate offense for the
federal crime existed, notwithstanding the fact that the predicate offense was
a state offense for which Mr. Viola had been pardoned. Perhaps it is time for
the Supreme Court to revisit its decision in Caron, both as a matter of statutory
interpretation and in light of the right recognized in Heller 2 and McDonald. 3
                                               I.
       In March 2008, Mr. Viola pleaded guilty to possession of marijuana with
intent to distribute.       It was a non-violent crime for which he received a
suspended five-year sentence and three years of probation.                          Mr. Viola
completed his probation, and, pursuant to Louisiana’s Constitution, he
received a first offender pardon. 4 That pardon was supposed to restore his full




       1   524 U.S. 308 (1998).
       2   554 U.S. 570 (2008).
         3 561 U.S. 742 (2010).
         4 See La. Const. Art. IV § 5(E)(1) (“[A] first offender convicted of a non-violent crime

. . . shall be pardoned automatically upon completion of his sentence[.]”).
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                                        No. 17-30950
rights of citizenship. 5 The pardon letter that Mr. Viola received directed him
to contact local law enforcement to verify that his right to possess a firearm
had been restored.         In relevant part, the letter Mr. Viola received from
Louisiana’s Department of Public Safety and Corrections said:
       The right to receive, possess, or transport a firearm may not be
       restored unless all legal provisions are met and should be
       determined through the local law enforcement agency.
Mr. Viola did exactly that. In testimony that was not permitted to go before
the jury, the local Chief of Police stated that Mr. Viola sought him out to
inquire whether he was permitted to possess firearms, and the Chief of Police
told him that his right to possess firearms had been restored by the pardon.
The Chief of Police also stated that he gave the same answer to Mr. Viola’s
father, who wanted to confirm that his son would be complying with the law.
       Nonetheless, despite Mr. Viola’s efforts to comply with the law, the
federal government stepped in to prosecute him for violating a federal felon-in-
possession-of-a-firearm law that was predicated on the very same state
conviction for which he had been pardoned. Moreover, the federal government
did so notwithstanding the text of 18 U.S.C. § 921(a)(20), which states:
       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 . . . 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


       5  La. Const. Art. I § 20 (“Full rights of citizenship shall be restored upon termination
of state and federal supervision following conviction for any offense.”); see also La. Rev. Stat.
Ann. 15:572(D) (“On the day that an individual completes his sentence the Division of
Probation and Parole of the Department of Corrections . . . shall issue a certificate recognizing
and proclaiming that the petitioner is fully pardoned for the offense, and that he has all rights
of citizenship and franchise[.]”).

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                                       No. 17-30950
       provides that the person may not ship, transport, possess, or receive
       firearms.
18 U.S.C. § 921(a)(20) (emphasis added).
                                              II.
       The district court denied Mr. Viola’s motion to dismiss the indictment for
lack of a predicate offense based on the Supreme Court’s precedent in Caron,
coupled with the fact that Louisiana does not permit pardoned ex-felons to
receive concealed carry permits. 6
       In Caron, a citizen of Massachusetts who had previously committed
felonies had his right to possess rifles—but not handguns (or, more specifically,
not handguns outside of the home)—restored by the state. Mr. Caron was
nonetheless prosecuted by the federal government for the possession of rifles
in his home, notwithstanding Massachusetts’s restoration of his legal right to
possess them. A divided Supreme Court upheld the conviction. According to
the majority opinion in Caron, federal law—not state law—determines when
an offender’s right to possess firearms is restored, and if state law places any
residual restriction on the right to possess any firearms in any manner



       6  In a separate concurrence, my colleague very thoughtfully explains why, given the
facts of this case, Mr. Viola likely cannot be prosecuted by Louisiana for violating the state’s
10-year “cleansing period” statute, and why the “cleansing period,” therefore, likely could not
be a basis for triggering Section 921(a)(20)’s “unless clause.” While I agree with my
colleague’s analysis as it pertains to the “cleansing period” statute, I respectfully disagree
with the conclusion that resort to Caron by the district court was improper in this case
because the district court should have dismissed for lack of a predicate offense.
        Louisiana law explicitly provides that recipients of the first offender pardon are not
eligible to receive a concealed carry permit. See La. Rev. Stat. Ann. 40:1379.3(C)(10).
Nothing from the record supports the conclusion that the pardon Mr. Viola received, nor the
advice he received from the Chief of Police, would have restored his ability to receive a
concealed carry permit from the state if he had applied for one. As explained below, under
Caron’s interpretation of Section 921(a)(20), that limitation triggers the “unless clause.” As
such, the district court could not have dismissed the indictment for lack of a predicate offense
while still being faithful to the Supreme Court’s precedent in Caron.
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                                 No. 17-30950
whatsoever, then federal law bars all possession of all firearms in all cases.
524 U.S. at 314–17. The majority opinion in Caron explicitly observed that it
was treating restoration of the right to possess a firearm differently from other
rights, such as the right to vote or the right be on a jury, where state law
governs the restoration of the right. Id. at 316.
      Since Caron, at least two federal courts of appeals—in addition to the
district court in the instant case—have held that an ex-felon permitted by the
state to possess a firearm nonetheless violates federal law when he possesses
that firearm, in full compliance with state law, but the state declines to grant
him a concealed carry permit for transporting it. See Van Der Hule v. Holder,
759 F.3d 1043, 1049 (9th Cir. 2014); United States v. Sanford, 707 F.3d 594,
598 (6th Cir. 2012). Thus, despite a federal statute saying the federal felon-in-
possession-of-firearm laws do not apply to ex-felons after they have been
pardoned unless the pardon expressly provides they may not possess or
transport firearms, those laws are being enforced against ex-felons even when
the pardon expressly provides they may possess and transport firearms—based
on the reasoning that the state still limits, in some manner, the methods by
which those firearms may be transported.
      Dissenting in Caron, Justice Thomas, joined by Justices Scalia and
Souter, carefully pointed out that as a matter of statutory interpretation,
Section 921(a)(20)’s plain language should have been interpreted to mean that
a pardoned state offense can be a predicate offense for federal felon-in-
possession-of-firearm laws “only when the State additionally prohibits those
ex-felons from possessing firearms altogether.” 524 U.S. at 318 (Thomas, J.,
dissenting). Moreover, the dissenting opinion noted that “[g]iven the primacy
of state law in the statutory scheme, it is bizarre to hold that the legal
possession of firearms under state law subjects a person to a sentence
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                                  No. 17-30950
enhancement under federal law. . . . Ex-felons cannot be expected to realize
that a federal statute that explicitly relies on state law prohibits behavior that
state law allows.” Id. at 318–19 (Thomas, J., dissenting).
      Caron was decided in an era wherein some courts rejected the fact that
the right to keep and bear arms for self-defense is an individual right entitled
to constitutional protection. Indeed, the district court in Caron was one such
court. See United States v. Caron, 941 F. Supp. 238, 241 n.7 (D. Mass. 1996)
(“This Court notes at the outset that there is no individual right to possess
firearms, nor is possession of a firearm a civil right.”). Heller and McDonald
changed that—or at least they should have.          As such, Caron’s different
treatment of the restoration of the right to possess firearms from the
restoration of other fundamental rights raises questions as to its continued
validity.
      Therefore, in an appropriate case, I would respectfully suggest that the
Supreme Court revisit Caron’s interpretation of 18 U.S.C. § 921(a)(20)’s
“unless clause,” both as a matter of statutory interpretation and in light of the
fact that possessing a firearm for self-defense should not be treated “as a
second-class right, subject to an entirely different body of rules than the other
Bill of Rights guarantees[.]” McDonald, 561 U.S. at 780 (plurality op.).




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