
USCA1 Opinion

	




          January 28, 1993                                [Not for Publication]                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 92-1448                                    UNITED STATES,                                      Appellee,                                          v.                                ALEXANDER C. NAZZARO,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Walter Jay Skinner, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                            Brown,* Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Elliot M. Weinstein for appellant.            ___________________            Sharen  Litwin, Assistant  United States  Attorney, with  whom  A.            ______________                                                  __        John Pappalardo, United States Attorney, was on brief for appellee.        _______________                                 ____________________                                 ____________________        _____________________        *Of the Fifth Circuit, sitting by designation.  Judge Brown heard oral        argument in this  matter, and participated in the  semble, but did not        participate  in the drafting or  the issuance of  the panel's opinion.        The remaining two panelists  therefore issue this opinion pursuant  to        28 U.S.C.   46(d).                    STAHL, Circuit Judge.   Defendant-appellant Alexander                           _____________            C. Nazzaro challenges his  conviction for violating 18 U.S.C.               922(g)(1), which makes it unlawful for any person "who has            been  convicted  in  any  court  of  a  crime  punishable  by            imprisonment for a  term exceeding one  year . .  . to . .  .            possess in or affecting commerce, any firearm or ammunition .            . .  "   Although  we affirm  the conviction,  we  do so  for            reasons different from those asserted by the district court.                                          I.                                          I.                                  Prior Proceedings                                  Prior Proceedings                                  _________________                    The relevant facts  of this case are undisputed.   On            March 12,  1990, agents from  the Federal Bureau  of Alcohol,            Tobacco and  Firearms (BATF), Massachusetts State  Police and            Barnstable  (Mass.)  Police  Department  executed  a  federal            search  warrant at  the Hyannis  home of  defendant's mother,            where defendant resided. The search yielded five firearms.1                    Nazzaro's subsequent indictment was predicated on the            following Massachusetts state court convictions, all of which            were punishable by imprisonment for more than one year:                    1.   Assault  and  battery;  Chelsea District  Court;                    February 1977;                    2.   Rape  and assault  and battery with  a dangerous                    weapon; Suffolk Superior Court; December 1977;                                            ____________________            1.  The firearms at  issue were two shotguns, two  rifles and            one pistol.                                         -2-                                          2                    3.   Assault  and  battery;  Essex   Superior  Court;            October      1978.2                      The  case was submitted to  a bench trial, prior to            which both sides stipulated  to defendant's possession of the            five  firearms listed  in  the indictment  and  to his  prior            convictions.    In  addition,  the  parties  stipulated  that            Nazzaro, at  the  time  of  his  arrest,  possessed  a  valid            Massachusetts  Firearms Identification  Card (FID),  by which            the Commonwealth authorized  him to possess  in his home  the            firearms at issue.  See Mass. Gen. L. ch. 140,   129B.3                                ___                    Thus,  the sole issue before the  trial judge was the            efficacy  of Nazzaro's  defense,  in which  he sought  refuge                                            ____________________            2.  Under Massachusetts law, only the December 1977, rape and            assault  and battery  with a  dangerous weapon  convictions--            number two,  above--are considered felonies.   See Mass. Gen.                                                           ___            L. ch.  265,   13A; Mass.  Gen. L. ch.  274,   1.   While the            other convictions  are misdemeanors under  Massachusetts law,            18 U.S.C.    921(a)(20)(B) provides that  a state misdemeanor            is considered a  "crime punishable by imprisonment for a term            exceeding  one year"  if it  is punishable  by more  than two            years  imprisonment.   Under Massachusetts  law, assault  and            battery is punishable  by a maximum term of two  and one half            years, thus  bringing the  two state misdemeanors  within the            purview of section 922(g)(1).            3.  Nazzaro received his FID in October 1977, after his first            misdemeanor conviction, but prior to his  felony convictions.            Under  Mass.  Gen.  L.  ch.  140,     129B,  the  misdemeanor            conviction had no legal  effect on his ability to  obtain the            FID, but it could have been revoked by the issuing authority-            -the   Barnstable   Police   Department--after   the   felony            convictions. For  reasons unknown, however,  revocation never            occurred.   In addition, the  same statute prohibits  a felon            from  obtaining  a FID  within  five years  of  conviction or            release  from jail.  There  is no dispute  that the five-year            firearm  proscription had  expired by  the time  of Nazzaro's            federal arrest and prosecution.                                         -3-                                          3            under the portion  of 18 U.S.C.    921(a)(20) which  provides            that:                         Any   conviction  which   has  been                         expunged, or set aside or for which                         a person has  been pardoned or  has                         had civil rights restored shall not                         be  considered   a  conviction  for                         purposes  of  this chapter,  unless                         such   pardon,    expungement,   or                         restoration    of   civil    rights                         expressly provides  that the person                         may  not ship,  transport, possess,                         or receive firearms.            Nazzaro argued that the provisions of Mass Gen. L. ch. 140,              129B which allow a convicted felon to obtain a FID five years            after  conviction or release from jail, and thereby possess a            firearm  at   home,  when  taken  in   conjunction  with  his            possession of a valid  FID and the failure of  authorities to            revoke  same, constituted  a  "restoration  of civil  rights"            within the meaning of 18 U.S.C.   921(a)(20), thus taking his            convictions for rape and assault and battery with a dangerous            weapons--the  Massachusetts felonies--  outside the  reach of            federal firearms law.  The trial court disagreed, ruling that            because possession of  a firearm  is not a  "civil right"  in            Massachusetts, defendant's possession of the FID and right to            possess   the  firearms   at   issue   cannot  constitute   a            "restoration of civil rights."  United States v. Nazzaro, 778                                            _____________    _______            F. Supp. 1, 2 (D. Mass. 1991).                                         II.                                         II.                                      Discussion                                      Discussion                                      __________                                         -4-                                          4                    We  review de  novo  the district  court's ruling  on                               __  ____            Nazzaro's status.   United States v. Chambers, 964  F.2d 1250                                _____________    ________            (1st Cir. 1992); See United States v. Haynes, 961 F.2d 50, 51                             ___ _____________    ______            (4th Cir.  1992) (issue of whether defendant  was a convicted            felon  within the  meaning  of 18  U.S.C.     921(a)(20)  and            922(g)(1) involves  a purely legal determination).   As noted            above, we  affirm Nazzaro's conviction.   A brief explanation            of our reasoning follows.                    As appellant's  counsel essentially conceded  at oral            argument, a  panel of this  court recently--and  explicitly--            blocked the way  to Nazzaro's putative safe haven.  In United                                                                   ______            States  v. Ramos, 961 F.2d 1003 (1st Cir.), cert. denied, 113            ______     _____                            _____ ______            S. Ct. 364 (1992), we were presented with, as we  are here, a            federal "felon-in-possession" defendant among whose predicate            crimes   were  those   categorized   as  misdemeanors   under            Massachusetts law.  We concluded that                         an individual convicted of  a crime                         categorized as  a misdemeanor under                         Massachusetts law,  . . .  does not                         by  law  forfeit any  civil rights.                         Hence, the proper  inquiry here  is                         whether an individual residing in a                         jurisdiction  which does  not strip                         him or her of any civil rights as a                         collateral      consequence      of                         conviction  should  be  deemed,  as                         appellant  urges,  to have  had his                         civil    rights   "restored"    for                         purposes  of      922(a)(1),  after                         having  served  his/her   sentence.                         Like the district court, we believe                         the answer is no.            Id. at 1008.            ___                                         -5-                                          5                    As appellant's counsel  recognized, this  case is  on            all  fours  with  Ramos  vis-a-vis  appellant's Massachusetts                              _____            misdemeanor convictions.4  Nazzaro, like Ramos, was  stripped            of  no  civil   rights  as  a   result  of  his   misdemeanor            convictions. Thus, according to Ramos, Nazzaro could not have                                            _____            had  any such  rights  "restored" within  the  meaning of  18            U.S.C.    921(a)(20).    Bound  as  we  are  by  prior  panel            decisions  so  closely on  point,  Fournier  v. Best  Western                                               ________     _____________            Treasure Island Resort, 962  F.2d 126, 127 (1st. Cir.  1992),            ______________________            we find, pursuant to 18 U.S.C.    922(g)(1), that appellant's            prior misdemeanors are "crimes punishable by imprisonment for            aterm exceedingoneyear."Accordingly,hisconvictionisaffirmed.5                                                               affirmed                                            ____________________            4.  We  note that  the  potential legal  effect of  Nazzaro's            Massachusetts  misdemeanor  convictions  was not  extensively            argued before, nor relied on by, the trial court, and that we            rendered   our  decision   in  Ramos   subsequent  to   those                                           _____            proceedings.    However,   the  parties  stipulated   to  the            existence of those  convictions, and where the key  facts are            undisputed,  we may  affirm  the district  court by  grouping            those facts  "`along the [proper] matrix.'"  Unites States v.                                                         _____________            Nivica, 887 F.2d 1110, 1127  (1st Cir. 1989) (quoting  United            ______                                        _______  ______            States v. Mora,  821 F.2d  860, 869 (1st  Cir. 1987)),  cert.            ______    ____                                          _____            denied,  110 S. Ct.  1300 (1990). Thus, we  rely on Ramos, as            ______                                              _____            explained more fully, infra, n. 5.                                  _____            5.  We  choose here to rely on Ramos rather than the district                                           _____            court's "civil rights"  analysis for two reasons.   First, as            illustrated above,  Ramos is indistinguishable from  the case                                _____            at bar, and thus  provides the most direct resolution  to the            issue  on appeal.   Second, we  are not  entirely comfortable            with the  district court's analysis of  the interplay between            18 U.S.C.   922(g)(1) and 18 U.S.C.   921(a)(20).                     Our concern stems  from the fact that  no other court            that  has  examined this  oft-contested  issue  has used  the            criterion of whether the state considers firearm ownership to            be  a civil right as a ratio decidendi.  Instead, many courts                                   _____ _________            have used  a dual inquiry, initially  determining whether the                                         -6-                                          6                                            ____________________            felon's "political" civil rights--to  vote, hold office,  sit            on  a  jury, etc.--have  been  restored,  and then  examining            whether  and to  what  extent such  restoration curtails  his            firearm  privileges as  a  result of  his felon  status. See,                                                                     ___            e.g.,  United States  v. Driscoll,  970  F.2d 1472  (6th Cir.            ____   _____________     ________            1992), cert. denied,  61 U.S.L.W. 3498  (U.S. Jan. 13,  1993)                   _____ ______            (No. 92-6132); United States v.  Cardwell, 967 F.2d 1349 (9th                           _____________     ________            Cir.  1992); United States v.  Dahms, 938 F.2d  131 (9th Cir.                         _____________     _____            1991); United States v. Traxel, 914 F.2d 119 (8th Cir. 1990);                   _____________    ______            United  States v. Gomez, 911 F.2d 219 (9th Cir. 1990); United            ______________    _____                                ______            States  v. Cassidy,  899  F.2d 543  (6th  Cir. 1990);  United            ______     _______                                     ______            States v. Coffman,  761 F.  Supp. 1493 (D.  Kan. 1991).  This            ______    _______            method of analysis seems most consistent with the language of            section 921(a)(20) wherein the civil  rights restoration does            not save a defendant  if such restoration "expressly provides            that the person may not  ship, transport, possess, or receive            firearms."                    The district court relied  on United States v. Erwin,                                                  _____________    _____            723 F. Supp. 1285 (C.D. Ill. 1989), aff'd,  902 F.2d 510 (7th                                                _____            Cir.),  cert.  denied, 111  S.  Ct.  161 (1991),  which  does                    _____  ______            question whether  firearm ownership itself is  a civil right.            However,  that  court's  affirmative   answer  was  not   the            determinative factor in its final decision.                    Finally,  we note  that  while Ramos  held that  some                                                   _____            affirmative state  action is required to  "restore" a felon's            civil   rights,  that   case  dealt   with  a   Massachusetts            misdemeanant  who  never had  any  rights taken  away.   This            circuit  has yet  to decide  what constitutes  an affirmative            restoration, or  what quantum of  rights need be  restored to            satisfy 18 U.S.C.   921(a)(20). Because  we base our decision            today on Nazzaro's prior  Massachusetts misdemeanors, we need            not  address  the  impact  of  Nazzaro's  prior Massachusetts            felonies.                                          -7-                                          7
