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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                  No. 14-CF-87

                     JAMAL RANDELL SOLOMON, APPELLANT,

                                        V.

                            UNITED STATES, APPELLEE.

                         Appeal from the Superior Court
                          of the District of Columbia
                                  (CF2-16-13)

                       (Hon. Ronna Lee Beck, Trial Judge)

(Submitted March 31, 2015                                   Decided July 23, 2015)

      Ian A. Williams was on the brief for appellant.

       Ronald C. Machen Jr., United States Attorney at the time the brief was filed,
and Elizabeth Trosman, Laura Coates, and Stratton C. Strand, Assistant United
States Attorneys, were on the brief for appellee.

      Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and KING,
Senior Judge.

      FISHER, Associate Judge: The District’s unlawful possession of a firearm

(“UPF”) statute prohibits any person who has been convicted of a crime punishable

by imprisonment for a term exceeding one year from possessing a firearm.

D.C. Code § 22-4503 (a)(1) (2012 Repl.). A recent amendment to the Youth
                                          2


Rehabilitation Amendment Act of 1985 (“Youth Act”) extended this prohibition to

persons whose convictions have been set aside under the Youth Act. D.C. Code

§ 24-906 (f)(8) (2012 Repl.). After this amendment took effect, Jamal Solomon

was arrested for and convicted of UPF; his prior conviction for unauthorized use of

a vehicle (“UUV”), D.C. Code § 22-3215 (b), (d) (2001), which had been set aside

pursuant to the Youth Act, served as the predicate felony. Because his UUV

conviction had been set aside before § 24-906 (f)(8) was enacted, Solomon

contends that, as applied to him, the provision violates the Ex Post Facto Clause of

the Constitution. See U.S. Const. art. I, § 9, cl. 3. We affirm.



                        I.    Factual and Procedural History



      On January 3, 2008, Solomon pled guilty to one count of UUV. Under the

Youth Act, the trial court sentenced him to a term of imprisonment but suspended

execution of that sentence, placing him on supervised probation. After finding that

Solomon had successfully completed the conditions of his probation, on July 16,

2009, the court ordered that he “be unconditionally discharged from the imposed

sentence” and set aside his conviction.
                                           3


      In 2011, the Council of the District of Columbia amended the Youth Act,

expressly permitting a set-aside conviction to serve as a predicate crime for UPF.

D.C. Code § 24-906 (f)(8) (“A conviction set aside under this section may be used

. . . [i]n determining whether a person has been in possession of a firearm in

violation of [the UPF statute].”). After his arrest on January 1, 2013, Solomon was

charged with firearm-related crimes, including one count of UPF. Solomon moved

to dismiss the UPF charge on ex post facto grounds, but the trial court denied his

motion. A jury trial ensued, and appellant was found guilty of UPF and possession

of an unregistered firearm.



                          II.    The Youth Act Amendment



      Solomon contends that the 2011 amendment to the Youth Act retroactively:

(1) redefined his past “legally innocent” conduct—his set aside UUV conviction—

as an element of a crime, (2) reinstated his exposure to punishment for his UUV

conviction, and (3) transformed the UUV conviction from an event with no

evidentiary value to proof of an element of a crime. “We review this constitutional

law question de novo.” Jones v. United States, 719 A.2d 92, 93 (D.C. 1998)

(referring to claim of ex post facto violation).
                                           4


                               A. The Ex Post Facto Clause



      “[A] law violative of the ex post facto clause may be identified by two

critical elements; it must be retrospective, that is, it must apply to events occurring

before its enactment, and it must disadvantage the offender affected by it.”

Dean v. United States, 938 A.2d 751, 770 (D.C. 2007) (citation omitted).

However, “every retrospective law is not an ex post facto law,” Calder v. Bull,

3 U.S. 386, 391 (1798) (emphasis added), and “[n]ot all changes in law which are

disadvantageous to a defendant violate the Ex Post Facto Clause,” Thomas v.

United States, 50 A.3d 458, 465 (D.C. 2012).



      “Ex post facto law” is a term of art limited to the following four categories

of laws: “1st. Every law that makes an action, done before the passing of the law,

and which was innocent when done, criminal; and punishes such action. 2nd.

Every law that aggravates a crime, or makes it greater than it was, when

committed. 3rd. Every law that changes the punishment, and inflicts a greater

punishment, than the law annexed to the crime, when committed. 4th. Every law

that alters the legal rules of evidence, and receives less, or different, testimony,

than the law required at the time of the commission of the offence, in order to

convict the offender.” Calder, 3 U.S. at 390; see Collins v. Youngblood, 497 U.S.
                                          5


37, 41-52 (1990) (the four types of laws identified in Calder are an exhaustive list

of ex post facto laws).



                           B. The Amendment Is Prospective



      The Youth Act amendment applies to offenders who committed their

predicate crimes both prior to and after its enactment. However, the former youth

offender is not exposed to criminal liability unless he possesses a firearm after the

effective date of the amendment.              The amendment therefore operates

prospectively, giving youth offenders whose convictions were set aside fair

warning of the UPF statute’s expanded proscription.         See Carmell v. Texas,

529 U.S. 513, 566 (2000) (“The Ex Post Facto Clause . . . serves to assure that

legislative Acts give fair warning of their effect and permit individuals to rely on

their meaning until explicitly changed.” (citation omitted)). In this case, Solomon

received constructive notice that he was not to possess a firearm as of June 3, 2011,

the amendment’s effective date. In spite of this notice, he chose to possess a

firearm on January 1, 2013, and was thereafter prosecuted for his post-amendment

conduct.
                                         6


      Notwithstanding this fair warning, Solomon contends that the setting aside

of his UUV conviction constituted official assurance that his prior conviction was

“forgiven” and therefore could not be used against him in the future to prove an

element of UPF. We disagree. The set-aside did not in any sense “forgive” his

past conduct. It was not a pardon. Moreover, at the time he pled guilty to UUV,

Solomon knew or should have known that a set-aside conviction could be used to

his detriment for a variety of purposes, including to determine whether he had

committed a second or subsequent offense for purposes of imposing a recidivist

penalty, to determine the appropriate sentence for any subsequent crime, and for

impeachment purposes. See D.C. Code § 24-906 (f)(1)-(6) (effective June 8,

2001).   Because a set-aside conviction could already be used as a “prior”

conviction for purposes of a subsequent offense, the Council likewise determined

that it could serve as a “prior” conviction under the UPF statute. D.C. Council,

Report on Bill 18-963 at 8 (Dec. 1, 2010).



      When his conviction was set aside, Solomon had no legitimate, or

enforceable, expectation that the Council, in its legislative discretion, would not

change the law in a way that restricted his future conduct. See Cases v. United

States, 131 F.2d 916, 921 (1st Cir. 1942) (legislature may, without offending the

prohibition against ex post facto laws, restrict an individual’s right to engage in
                                         7


future activity because of his past conduct, so long as the past conduct can

reasonably be said to indicate unfitness to engage in the future activity); Jordan v.

State, 56 S.W.3d 326, 332 (Tex. App. 2001) (legislature did not violate the Ex Post

Facto Clause when it amended an existing felon-in-possession statute, which

applied exclusively to persons convicted of violent felonies, to also prohibit any

person convicted of a non-violent felony from possessing a firearm).



      Regardless of whether Solomon’s prior conviction was “forgiven” for some

purposes, 1 the Council retained the right to enact a new forward-looking law

establishing a new crime or revising an existing one. See United States v. Brady,

26 F.3d 282, 291 (2d Cir. 1994) (no ex post facto violation where felon possessed a

firearm in contravention of a felon-in-possession statute, even though his felony

conviction preceded enactment of the statute); State v. Banta, 544 A.2d 1226, 1238

(Conn. 1988) (felon-in-possession statute was not an ex post facto law; although




      1
          The purpose of the Youth Act “is to provide rehabilitation opportunities
for deserving young adult offenders between the ages of 18 and 22.”
D.C. Council, Report on Bill 6-47 at 2 (June 19, 1985). The Act’s set-aside
provision “allows a successfully rehabilitated individual to start anew without the
stigma of a conviction.” D.C. Council, Report on Bill 18-963 at 8 (Dec. 1, 2010).
It, for example, gives a former youth offender “the right to lawfully state on an
application for school or employment that he/she has not been convicted of a
crime.” Id. at 7.
                                          8


the defendant’s prior conviction preceded the enactment of the statute, the

criminalized conduct—his possession of a pistol—did not).



           C. The Amendment Does Not Fit Within the Calder Categories



      Even assuming that the Youth Act amendment operates retroactively by

enlarging the uses that may be made of a set-aside conviction, Solomon has

nevertheless failed to demonstrate that it disadvantages him in a manner prohibited

by the Calder categories. It did not “make[] an action, done before the passing of

the law, and which was innocent when done, criminal.” Calder, 3 U.S. at 390.

Solomon possessed the firearm after the 2011 amendment and, although he

committed and was convicted of UUV before the amendment, his unauthorized use

of a vehicle was not “innocent when done.”          See D.C. Code § 22-3215 (b)

(prohibiting unauthorized use of a vehicle). That his conviction was eventually set

aside does not change our analysis. A set-aside does not amount to an acquittal,

nor does it “alter the fact of conviction”; it merely “shields it from public view and

effect.” Lindsay v. United States, 520 A.2d 1059, 1063 (D.C. 1987).



      Nor does the amendment “aggravate[] a crime, or make[] it greater than it

was, when committed,” or “inflict[] a greater punishment, than the law annexed to
                                          9


the crime, when committed.” Calder, 3 U.S. at 390. In arguing to the contrary,

appellant mistakenly asserts that § 24-906 (f)(8) inflicted additional punishment for

his set-aside UUV conviction. See Stogner v. California, 539 U.S. 607, 613 (2003)

(defining the second Calder category as a statute that inflicts punishment where the

party was not, by law, liable to any punishment); Garner v. Jones, 529 U.S. 244,

249-50 (2000) (defining the third Calder category as barring “enactments which,

by retroactive operation, increase the punishment for a crime after its

commission”). However, the Youth Act amendment does not impose punishment

for the offense underlying a set-aside conviction; instead, it imposes a forward-

looking firearms restriction on a class of former youth offenders.          Because

Solomon chose to possess a firearm, in contravention of this restriction, he was

prosecuted and punished for his post-enactment conduct—not for his UUV.



      Lastly, because the Youth Act amendment preceded Solomon’s possession

of a firearm, it simply could not have altered or changed the evidence required to

convict at the time of the offense. See Calder v. Bull, 3 U.S. at 390. The burden of

proof and evidentiary standards at the time of the UPF offense remained the same

through the time of prosecution. In a sense, perhaps, the Youth Act amendment

did “transform” Solomon’s UUV conviction from an event with no evidentiary

value to proof sufficient to establish an element of a crime. However, doing so did
                                         10


not run afoul of the Ex Post Facto Clause because, as stated above, legislatures are

permitted to impose future restrictions due to past behavior.



      Because the 2011 amendment to the Youth Act neither operates retroactively

nor otherwise fits within the Calder categories, applying it to appellant did not

violate the Ex Post Facto Clause. The trial court, therefore, properly denied

Solomon’s motion to dismiss the UPF charge.



                                  III.   Conclusion



      The judgment of the Superior Court is



                                                    Affirmed.
