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

No. 05-4722
UNITED STATES OF AMERICA,
                                             Plaintiff-Appellee,
                               v.

JAMES D. LOGAN,
                                         Defendant-Appellant.
                        ____________
           Appeal from the United States District Court
               for the Western District of Wisconsin.
          No. 05-CR-088-S-01—John C. Shabaz, Judge.
                        ____________
       ARGUED JUNE 8, 2006—DECIDED JULY 6, 2006
                     ____________
 Before EASTERBROOK, ROVNER, and EVANS, Circuit
Judges.
  EASTERBROOK, Circuit Judge. This appeal presents a
single question: whether a state conviction that did not
result in a deprivation of civil rights can be a predicate
offense under the Armed Career Criminal Act, 18 U.S.C.
§924(e)(1). That statute enhances the penalty for gun-toting
felons whose prior convictions include at least three violent
crimes or serious drug offenses. A conviction that a state
classifies as a misdemeanor counts if the punishment can
exceed two years. 18 U.S.C. §§ 921(a)(20)(B), 924(e)(2)(B).
Logan has (in addition to one concededly qualifying drug
felony conviction) three battery convictions that, though
called misdemeanors in Wisconsin, carried maximum terms
of three years’ imprisonment and are treated as “violent
2                                                 No. 05-4722

felonies” by §924(e). Nonetheless, Logan maintains, they
should be disregarded because the last sentence of
§921(a)(20) excludes from the definition of “conviction” any
offense that “has been expunged, or set aside or for which
a person has been pardoned or has had civil rights restored
. . . unless such pardon, expungement, or restoration of civil
rights expressly provides that the person may not ship,
transport, possess, or receive firearms.”
  Logan contends that a conviction that did not result in
the loss of the rights to vote, hold public office, and serve on
juries should be treated the same as a conviction following
which those rights were terminated but later restored. This
argument has the support of United States v. Indelicato, 97
F.3d 627 (1st Cir. 1996). The district court held, however,
that an offender whose civil rights have been neither
diminished nor returned is not a person who “has had civil
rights restored”. That conclusion, which has the support of
McGrath v. United States, 60 F.3d 1005 (2d Cir. 1995), led
to a 180-month sentence, the minimum for any armed
career criminal.
  Compelled to choose between the holding of Indelicato
and that of McGrath, we take the second circuit’s part. The
reason is simple. The word “restore” means to give back
something that had been taken away. As McGrath re-
marked, “the ‘restoration’ of a thing never lost or dimin-
ished is a definitional impossibility.” 60 F.3d at 1007. Logan
does not deny this, nor did the panel in Indelicato. That
court recognized that it was going in the teeth of the
statutory text but decided to do so because (a) it thought the
statute silly—for why should someone whose civil rights
were never taken away receive a higher federal sentence
than a person who lost and then regained those
rights?—and (b) no legislative history shows that Congress
meant to distinguish between convicts who never lost
civil rights and those who lost but regained them.
  The second of these reasons is a makeweight. Statutes do
not depend, for their force, on some statement in the
No. 05-4722                                                  3

legislative history along the lines of: “We really mean it!”
See, e.g., Swain v. Pressley, 430 U.S. 372, 378-79 (1977);
Harrison v. PPG Industries, Inc., 446 U.S. 578, 591-92
(1980). Today’s Supreme Court uses legislative history
only to resolve ambiguities in enacted texts. Even the
plainest legislative history does not justify going against an
unambiguous enactment. See Arlington Central School
District v. Murphy, No. 05-18 (U.S. June 26, 2006), slip op.
11-12; Exxon Mobil Corp. v. Allapattah Services, Inc., 125 S.
Ct. 2611, 2625-27 (2005). (Nor does explicit legislative
history justify the creation of a legal rule on a subject about
which the statute is silent. See Brill v. Countrywide Home
Loans, Inc., 427 F.3d 446 (7th Cir. 2005).) And if legislative
history directly addressing a subject does not free a court
from enacted language, the absence of legislative history
cannot do so. See Whitfield v. United States, 543 U.S. 209,
215-16 (2005).
  As for Indelicato’s first reason: this is a variant on the
proposition that courts read statutes to make sense rather
than nonsense. Absurd possibilities are ruled out. We
call Indelicato’s approach a variant of the anti-absurdity
canon, however, because the first circuit did not mention
it—and for good reason. The statute is not absurd as
written. Its text parses; there is no linguistic garble. The
canon is limited to solving problems in exposition, as
opposed to the harshness that a well-written but poorly
conceived statute may produce. See Jaskolski v. Daniels,
427 F.3d 456 (7th Cir. 2005). Accord, Robbins v. Chronister,
435 F.3d 1238 (10th Cir. 2006) (en banc). Otherwise judges
would have entirely too much leeway to follow their own
policy preferences by declaring that the legislative choice is
harsh or jarring. See, e.g., Adrian Vermeule, Judging Under
Uncertainty 57-59 (2006); John Manning, The Absurdity
Doctrine, 116 Harv. L. Rev. 2387 (2003).
  The Supreme Court insists that statutes be enforced
as written even when they seem mistaken or pointless—for
4                                               No. 05-4722

it is exactly then that the temptation to substitute one’s
judgment for the legislature’s is strongest. See, e.g., Dodd
v. United States, 545 U.S. 353 (2005) (the statute of limita-
tions for collateral attacks on criminal convictions must be
enforced as written even though time may expire before a
challenge becomes possible, and even though this possibility
likely resulted from legislative oversight); Chapman v.
United States, 500 U.S. 453 (1991) (sentence for LSD must
be based on the weight of the carrier medium as well as
that of the drug, even though the carrier may be hundreds
of times heavier and Congress may not have understood
that LSD differs from other illegal drugs in this way). Laws
are not “harsh” or “pointless” in any value-free framework;
they seem harsh or pointless by reference to a given judge’s
beliefs about how things ought to work, which is why a
claim of power to revise “harsh” or “pointless” laws elevates
the judicial over the legislative branch and must be re-
sisted. See Tyler v. Cain, 533 U.S. 656, 663 n.5 (2001).
  Indelicato assumed that judges may correct a legislature’s
mistakes and oversights. It did not, however, identify any
source of authority to do this—or for that matter explain
why this statute is a botch. True enough, someone whose
civil rights have not been revoked cannot have them
restored. But restoration of civil rights is just one of three
ways to erase a conviction from one’s record for purposes of
federal law. The other two—expungement and pardon—are
as available to people who never lost their rights to vote,
hold office, and serve on juries, as they are to other offend-
ers.
  Section 921(a)(20) acquired its current form in 1986 as a
reaction to Dickerson v. New Banner Institute, Inc., 460 U.S.
103 (1983). Dickerson held that federal rather than state
law defines a “conviction” for purposes of 18 U.S.C. §§ 922
and 924, and that under federal law a conviction supports
recidivist enhancements even after it has been expunged by
the rendering court. The 1986 legislation makes the effect
No. 05-4722                                                  5

of a conviction turn on state law—with the proviso that a
pardon or restoration of rights removes the conviction for
federal purposes, even if state law still would count it as a
criminal conviction, “unless such pardon, expungement, or
restoration of civil rights expressly provides that the person
may not ship, transport, possess, or receive firearms.”
That’s a federal anti-mousetrapping rule overlain on state
law; a person told that his civil rights have been restored
may assume that this means all rights unless he is in-
formed that the right to vote (and so on) does not imply a
right to carry firearms. See United States v. Erwin, 902
F.2d 510, 512-13 (7th Cir. 1990). Logan has not been misled
by any state act that apparently freed him from the legal
consequences of his battery convictions.
  When Congress replaced Dickerson’s uniform federal rule
with a state definition of conviction, it ensured that simi-
larly situated people would be treated differently—for
states vary widely in which if any civil rights a convict loses
and whether these rights are restored. Some states deprive
almost all convicts of these rights but restore them auto-
matically after a set period. See Caron v. United States, 524
U.S. 308, 313-14 (1998) (agreeing with appellate consensus
that restoration by operation of law has the same legal
effect as restoration by act of personal clemency). Others
take away fewer rights and make them harder to regain.
The Office of the Pardon Attorney has compiled a list of
these differences that conveys the flavor, though it may be
out of date. U.S. Department of Justice, Civil disabilities of
convicted felons: a state-by-state survey (1996), available at
http://www.usdoj.gov/pardon/forms/ state_survey.pdf.
Vermont, for example, permits felons not only to vote from
prison (they get absentee ballots) but also to hold office, but
not to serve on juries; New Hampshire permits them to
serve on juries but not to vote until after release (and
restoration then is automatic); other states take away all
three rights (plus the right to carry firearms) and don’t
6                                                 No. 05-4722

restore them except via executive clemency. Most states
would call the batteries of which Logan was convicted
felonies and deprive the offender of civil rights (for in most
states the dividing line between misdemeanor and felony is
a maximum term of one year’s imprisonment). Wisconsin
ordinarily puts the dividing line lower: misdemeanor
sentences can’t exceed nine months in a local jail, and any
time at all in the state prison system depends on a felony
conviction. Wis. Stat. §939.60. Low sentences are accompa-
nied by a rule that misdemeanants retain the right to vote.
But even a misdemeanor conviction for battery by a repeat
offender can carry a three-year sentence. See Wis. Stat.
§939.62, §940.19(l). No reading of §921(a)(20) could produce
identical treatment (for purposes of federal recidivist
prosecutions) of people who commit the same crimes in
different states.
   When the first circuit in Indelicato combined what it
perceived as an infelicitous enactment with the absence of
“We really mean it!” legislative history, it was nodding in
the direction of imaginative reconstruction—the idea that
a court may implement what it is sure the legislature would
have done (had it faced the question explicitly) rather than
what the legislature actually did. The Supreme Court has
anathematized that approach as democratically illegitimate,
for it sets up the judiciary as the effective lawmakers. See,
e.g., West Virginia University Hospitals, Inc. v. Casey, 499
U.S. 83, 100-01 (1991) (calling imaginative reconstruction
a “usurpation” that “profoundly mistakes [the judicial]
role”); Tafflin v. Levitt, 493 U.S. 455, 461-62 (1990) (“Peti-
tioners . . . insist that if Congress had considered the issue,
it would have [adopted a particular rule]. This argument .
. . is misplaced, for even if we could reliably discern what
Congress’ intent might have been had it considered the
question, we are not at liberty to so speculate”). This case
illustrates the practical as well as the theoretical failings in
that doctrine, for Indelicato’s guess about what Congress
“would have done, had it thought” turns out to be wrong.
No. 05-4722                                                   7

   Section 922(g)(9) of the criminal code makes it unlawful
for anyone “who has been convicted in any court of a
misdemeanor crime of domestic violence” to possess a
firearm that is connected with interstate commerce. This
section has a definitional provision corresponding to
§921(a)(20). That provision, 18 U.S.C. §921(a)(33)(B)(ii),
reads: “A person shall not be considered to have been
convicted of such an offense for purposes of this chapter if
the conviction has been expunged or set aside, or is an
offense for which the person has been pardoned or 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.” This tracks
§921(a)(20) in treating expungement, pardon, or restoration
of civil rights as canceling all effect of the conviction—but
it shows that the “restoration of civil rights” clause is
inapplicable to one whose civil rights were never taken
away. For such persons, expungement and pardon are the
only ways to regain the right to possess firearms. In other
words, when Congress addressed this subject directly, it
supported the second circuit’s conclusion in McGrath, not
the first circuit’s prediction in Indelicato.
  Defendants have argued that §921(a)(33)(B)(ii) is itself
absurd, and should not be applied as written, because (for
example) the governor’s pardon power in some states does
not reach misdemeanor convictions. With one exception
these arguments have been rejected, and courts have
enforced this statute while noting, as McGrath had done for
§921(a)(20), that the differences in state rules can lead
otherwise identical offenders to be treated differently under
federal law. See United States v. Jennings, 323 F.3d 263,
267-69 (4th Cir. 2003); United States v. Kirchoff, 387 F.3d
748 (8th Cir. 2004); United States v. Smith, 171 F.3d 617,
624-26 (8th Cir. 1999); United States v. Hancock, 231 F.3d
8                                              No. 05-4722

557, 566-67 (9th Cir. 2000); United States v. Barnes, 295
F.3d 1354, 1368 (D.C. Cir. 2002).
  The outlier is United States v. Wegrzyn, 305 F.3d 593 (6th
Cir. 2002). Persons convicted of domestic-violence misde-
meanors in Michigan lose their right to vote only while
incarcerated; it is restored automatically on release.
Wegrzyn, who received a suspended sentence following his
conviction, therefore did not lose any civil right. Without
citing McGrath, Indelicato, or any of the earlier decisions
under §921(a)(33)—for that matter, without parsing the
statutory language—the sixth circuit declared that it would
be absurd to treat more harshly (under federal law) some-
one who received a suspended sentence in Michigan than
someone who had gone to prison there (presumably for a
more serious domestic battery); Wegrzyn refused to apply
the federal statutes as enacted. This shows that even when
Congress addresses a subject as directly as possible—for
§921(a)(33)(B)(ii) says point blank that people who were not
deprived of their civil rights under state law differ from
those whose rights were stripped and then restored—some
judges still balk at applying what they find to be an unpal-
atable rule. Wegrzyn’s holding has been universally rejected
by other courts that have addressed the identical question.
In addition to Jennings and Kirchoff, see United States v.
Bailey, 408 F.3d 609 (9th Cir. 2005). Just as the fourth
circuit’s opinion in Jennings disparaged Indelicato to the
extent its approach reflected on the best understanding of
§921(a)(33)(B)(ii), so we disapprove Wegrzyn to the extent
its approach bears on the best understanding of §921(a)(20).
Both of these statutes create ample potential for disparate
treatment, but that’s inherent in the legislative choice to
make federal sentences depend on the states’ different (and
often internally inconsistent) approaches to revoking and
restoring civil rights.
  What a federal court can do, as a uniform matter, is count
all state convictions unless the state extends a measure of
No. 05-4722                                                9

forgiveness. The last sentence of §921(a)(20) specifies how
forgiveness is to be conveyed: pardon, expungement, or a
restoration of civil rights. Logan’s battery convictions did
not qualify for the third means (though he had lost his civil
rights in Wisconsin on account of his drug offense and never
got them back) but potentially qualified for the first and
second. So far as this record reveals, however, Logan never
sought expungement or a pardon (and we know that, if he
sought one, he did not obtain that boon). Wisconsin has
neither forgiven him nor misled him about the (federal)
consequences of his convictions, and as his convictions are
serious enough to come within the federal definition of
violent felonies they require sentencing as a recidivist
under the Armed Career Criminal Act.
                                                  AFFIRMED
A true Copy:
      Teste:

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




                    USCA-02-C-0072—7-6-06
