
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 94-2026                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   GERALD R. CARON,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                Torruella, Chief Judge, Coffin, Senior Circuit Judge,                           ___________          ____________________                Selya, Cyr, Boudin, Stahl, and Lynch, Circuit Judges.                                                      ______________                                 ____________________            Owen S. Walker, Federal Public Defender, for appellant.            ______________            Timothy  Q  Feeley,  Assistant  U.S.  Attorney,  Brian  T.  Kelly,            __________________                               ________________        Assistant U.S. Attorney, Donald K.  Stern, United States Attorney, for                                 ________________        appellee.                                 ____________________                                  February 26, 1996                                 ____________________                                   OPINION EN BANC                                 ____________________               COFFIN, Senior Circuit Judge.  Appellant Gerald R. Caron was                       ____________________          convicted  of  possessing  rifles,  shotguns  and  ammunition  in          violation  of  18 U.S.C.    922(g)(1),  the "felon-in-possession"          law.  Because  at least  three of Caron's  five predicate  felony          convictions  were  for  crimes  of violence,  he  was  subject to          sentence  enhancement  under   the  Armed  Career   Criminal  Act          ("ACCA"), 18 U.S.C.   924  (e)(1).  Caron received a  prison term          of  21 years,  10 months,  plus a  five year  term of  supervised          release.  See U.S.S.G.   4B1.4.                     ___               The issue in this case is whether three prior  Massachusetts          convictions should  not be counted  as predicate crimes  under 18          U.S.C.   921(a)(20), which excludes as predicates               [a]ny conviction which 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.          The  questions we  must  address relate  to  the words  preceding          "unless," and, in particular, the procedure by which one "has had          civil  rights restored."    Under Massachusetts  laws of  general          application,  two of  Caron's  basic civil  rights were  restored          automatically after a lapse  of time or at the  expiration of his          sentence; the remaining one was never taken away from him.                 In  an earlier stage of this  case,  United States v. Caron,                                                    _____________    _____          64 F.3d 713, 718 (1st Cir. 1995), a panel of  this court, deeming          itself bound to follow United States v. Ramos, 961 F.2d 1003 (1st                                 _____________    _____          Cir. 1992), held that the requirements of   921(a)(20) can be met          only  by "focused,  individualized, affirmative  action," not  by                                         -2-          laws  of  general  or  automatic application.    We  subsequently          decided to  reconsider this  holding en  banc, allowed  the panel                                               __  ____          opinion to remain in effect  as to the other issues decided,  and          asked  for briefing  on one  additional issue:   whether,  as the          Ramos  panel  reasoned  (regarding  misdemeanors),     921(a)(20)          _____          cannot  be satisfied  where  civil  rights  are  not  lost  as  a          collateral  consequence  of  conviction,   since  there  is   "no          individualized official judgment" evidencing the state's "renewed          trust" in the individual.  Ramos, 961 F.2d at 1009.                                     _____               The government,  after having filed a  brief urging adoption          of  the panel's  position,  notified us  that  it was  no  longer          defining  the restoration  of civil  rights to  exclude automatic          affirmative actions  based on generic statutes.   It nevertheless          did not retreat from its insistence that  some affirmative action          was required to "restore"  such rights.  And it  did not withdraw          its fallback contentions that Massachusetts statutes do not fully          restore the civil rights  of convicted felons and, in  any event,          expressly  restrict   their   rights  to   possess   firearms.             Notwithstanding the  government's change of  position, which  was          unexplained, we must arrive at our own independent judgment.                After due deliberation, we now hold, in accordance  with our          seven sister circuits,1  that civil rights may be restored within                                        ____________________               1   McGrath v. United States,  60 F.3d 1005  (2d Cir. 1995);                   _______    _____________          United  States v.  Hall, 20  F.3d 1066  (10th Cir.  1994); United          ______________     ____                                    ______          States v. Glaser, 14 F.3d 1213  (7th Cir. 1994); United States v.          ______    ______                                 _____________          Thomas, 991 F.2d 206 (5th Cir. 1993); United States v. Dahms, 938          ______                                _____________    _____          F.2d 131 (9th  Cir. 1991); United  States v. Essick, 935  F.2d 28                                     ______________    ______          (4th  Cir. 1991); and United States v. Cassidy, 899 F.2d 543 (6th                                _____________    _______          Cir. 1990).                                          -3-          the meaning of    921(a)(20) by laws of  general application.  We          also hold that, at  least where some civil rights are restored by          the  operation of such  laws, the fact  that one  civil right was          never  lost does not prevent an individual from having "had civil          rights restored" within the meaning of the provision.                                        BACKGROUND          A.  Facts              _____               We briefly set forth  the relevant facts.  On  two occasions          in 1993, rifles, shotguns and  ammunition were seized from Caron.          At the time  of his  arrest, his criminal  record included  three          Massachusetts  felony  convictions  (1958,  1959,  and  1963),  a          California  felony  conviction  (1970),  and  a  federal firearms          felony conviction (1977).  All four state convictions constituted          violent  crimes which could  serve as predicates  under the ACCA.          See 18 U.S.C.   924(e)(2)(B).          ___          B.  Massachusetts Statutory Scheme              ______________________________               "Civil  rights," within  the meaning  of    921(a)(20), have          been generally agreed to comprise the right to vote, the right to          seek and  hold public office, and  the right to serve  on a jury.          United States  v. Cassidy, 899 F.2d 543, 549 (6th Cir. 1990).  As          _____________     _______          an   initial   matter,   therefore,  we   recount   the  relevant          Massachusetts laws corresponding to these rights.                 A convicted felon in Massachusetts  does not lose the  right          to  vote.   See Mass.  Gen. L.  ch. 54,     86,  103B.   He does,                      ___          however, lose the right  to hold public office while  serving his          sentence.  Mass.  Gen.  L.  ch.  279,    30.    And,  a  felon is                                         -4-          disqualified  from  juror  service  until seven  years  from  his          conviction.   Mass. Gen. L. ch.  234A,   4.   However, even after          seven years, a  judge can remove one from a  jury panel solely on          the basis of a prior felony conviction.  Mass. Gen. L. ch. 234,            8.               Clearly,  the  Massachusetts  scheme  neither  provides  for          "individualized,   affirmative   actions"   nor    for   complete          "restoration," as the  right to  vote is never  removed.   Ramos,                                                                     _____          therefore,   on  both   fronts,   would   mandate  that   Caron's          Massachusetts convictions  count for purposes of the  ACCA.  Now,          sitting en banc, we revisit the question whether we should depart                  __ ____          from the positions we took in Ramos.                                        _____                                     DISCUSSION            A.   Restoration of Civil Rights:  Individualized Acts Only?               _______________________________________________________               We approach  the task  of statutory interpretation  with the          following guideline foremost in mind:               So  long  as  the  statutory   language  is  reasonably               definite, that  language must ordinarily be regarded as               conclusive (at least in  the absence of an unmistakable               legislative intent to the contrary).          United States v. Charles  George Trucking Co., 823 F.2d  685, 688          _____________    ____________________________          (1st Cir. 1987) (citations omitted).               The key words of 18 U.S.C.   921(a)(20) are "expunged," "set          aside,"  "pardoned," and  "civil rights  restored."   All of  the          words signify a result:  strike out, efface, eliminate (expunge);          dismiss, discard,  annul (set  aside); excuse an  offense without          punishment, release  an offender from punishment  (pardon); bring                                         -5-          back to an  original state or condition (restore).2   They do not          address  the means by which  the results may  be accomplished or,          consequently, indicate preference for any particular means.                In Ramos,  our panel assumed that  pardons, expungements and                  _____          restorations  of  rights  all  involved  individualized  official          judgments and procedures. 961 F.2d at 1010.  But the wide variety          of practices  adopted by states has  since been pointed  out.  In          United States v. Glaser, 14 F.3d  1213, 1218 (7th Cir. 1994), the          _____________    ______          court  noted   that  "[n]either  pardons  nor   expungements  are          necessarily   individualized,"  citing   mass  pardons   by  both          Presidents  Jefferson  and Carter,  and  federal  and state  laws          providing for  "routine expungement" of  convictions for juvenile          offenses.               In McGrath v.  United States,  60 F.3d 1005,  1008 (2d  Cir.                  _______     _____________          1995),  the  court recognized  that  "many  states restore  civil          rights to convicted felons by means of a general law stating that          all rights shall be  reinstated upon the service of  a sentence."          It  also noted  that other  states authorize  officials to  issue          certificates  of  restoration  after   a  given  period  of  time          following sentence or parole, while a minority of states "restore          rights in  piecemeal fashion," and twelve  states apparently have          no provision regarding restoration of civil rights.                    Perhaps even more significantly,  in Dickerson v. New Banner                                                    _________    __________          Inst., Inc.,  460 U.S. 103  (1983), the Supreme  Court recognized          ___________                                        ____________________               2   These synonyms are  substantially common  to The  Random                                                                ___________          House Dictionary (2d ed. 1987), Webster's Third New International          ________________                _________________________________          Dictionary (1976), and The American Heritage Dictionary (1973).           __________             ________________________________                                         -6-          the   diversity  of   state  post-conviction   actions  such   as          expungement.  It noted that over half the states had enacted such          statutes  and  that they  varied  "in  almost every  particular,"          ranging  from applicability  only to  young offenders  or certain          offenses to  automatic expunction, and amounted  to "nothing less          than  a national patchwork."  Id.  at 121-22.  The Court reasoned                                        __          that  the  purpose  of the  federal  firearms  statute "would  be          frustrated  by a ruling  that gave effect  to state expunctions,"          id. at 119, and reversed a lower court ruling that had given full          __          effect  to a  state expungement  following a  successfully served          period of probation.3               Congressional reaction to Dickerson in large part  accounted                                         _________          for  the crafting of    921(a)(20), which expressly allowed state          law  to define a predicate conviction for purposes of the federal          firearms laws.4  See  McGrath, 60 F.3d at 1009.   In interpreting                           ___  _______             921(a)(20),  therefore,  we take  into  account  not only  the          diversity  of state approaches to the restoration of civil rights          of convicted  felons but also  the clearly manifested  purpose of          Congress  to defer to state laws, in this context, in determining                                        ____________________               3  The  firearm disabilities  were imposed by  18 U.S.C.              922(g)  and  (h), enacted  under Title  IV  of the  Omnibus Crime          Control and  Safe Streets  Act of  1968, Pub.  L. No.  90-351, 82          Stat. 226 (1968) (as amended by the Gun Control Act of 1968, Pub.          L. No.  90-618, 82 Stat.  1214 (1968)).   In  1986, the  Firearms          Owners' Protection Act, Pub. L. No. 99-308, 100 Stat. 449 (1986),          amended this law  by, inter  alia, changing    921(a)(20) to  its                                _____  ____          current form.               4    The  sentence  preceding  the sentence  at  issue  here          provides that "[w]hat  constitutes a  conviction . .  . shall  be          determined  in accordance  with the  law  of the  jurisdiction in          which the proceedings were held."  18 U.S.C.   921(a)(20).                                         -7-          predicate    convictions   and    the    removal    of    firearm          disqualifications.   As the Court  stated in Dickerson,  "[a]s in                                                       _________          all cases of statutory construction, our task is to interpret the          words of [the statute]  in light of the purposes  Congress sought          to  serve." 460 U.S. at  118 (quoting Chapman  v. Houston Welfare                                                _______     _______________          Rights Org., 441 U.S. 600, 608 (1979)).          ___________               In light of this background, we discern no basis for reading          into the words  at issue any gloss based on  assumed frequency of          use  or primacy  of  meaning.    And, we  hesitate  to  impose  a          qualification  upon  these words  absent some  textual indication          that  such limitation  is warranted.5   Accordingly,  we conclude          that  the plain  language of    921(a)(20)  makes clear  that the          restoration   of   civil   rights   need  not   be   focused   or          individualized.                                        ____________________               5  We do not overlook a plausible reading of the last clause          of   921(a)(20)  ("unless such  pardon . .  . expressly  provides          that the person may not . . . possess . . . firearms"), which the          panel  in   Ramos   found  supported   its  interpretation   that                      _____          individualized action was required.   961 F.2d at  1008.  But  we          think  an interpretation  consistent  with a  broader reading  is          provided by Glaser, 14 F.3d at 1218:                       ______               A person who contends that state statutes have restored               all of his  civil rights . . . [requires us] to examine               the whole  of state statutory law  to determine whether               the state treats  him as "convicted" for the purpose of               possessing firearms.  When the state gives the person a               formal  notice  of  the restoration  of  civil  rights,               however, the final  sentence of    921(a)(20) instructs               us to look, not  at the content of the  state's statute               books but at the contents of the document.          This interpretation jibes with the Court's instruction in Beecham                                                                    _______          v. United  States, 114 S. Ct. 1669, 1671 (1994), to focus on "the             ______________          plain meaning of the whole statute -- not of isolated sentences."                                         -8-               From our  present perspective, therefore, we see  no need to          look into legislative history.6   See Summit Inv. and  Dev. Corp.                                            ___ ___________________________          v. Leroux, 69  F.3d 608,  610 (1st Cir.  1995) ("Plain  statutory             ______          language  does not prompt  recourse to countervailing legislative          history.").    Nonetheless, given  that  we  initially reached  a          contrary conclusion, and to  ensure that there is not  "a clearly          expressed  legislative intent  to the  contrary,"  Dickerson, 460                                                             _________          U.S. at 110  (internal quotation marks and citation  omitted), we          take  a brief foray into the legislative history of   921(a)(20).               Our review leads  us to the conclusion  that the legislative          history  of   the  provision  "'is  more   conflicting  than  the          [statutory] text is  ambiguous.'"  United  States v. Aversa,  984                                             ______________    ______          F.2d  493, 499 n.8  (1st Cir. 1993) (en  banc) (quoting Wong Yang                                               __  ____           _________          Sung v.  McGrath, 339  U.S. 33,  49 (1950)).   We begin  with the          ____     _______          statutory predecessors of    922(g)(1), 18  U.S.C. App.     1201-          1203, which proscribed, inter alia, the possession of firearms by                                  _____ ____                                        ____________________               6   We  note that  the other  circuits have,  almost without          exception,  focused their  analysis  on  the statutory  language,          rather than  the legislative history.  See  Hall, 20 F.3d at 1069                                                 ___  ____          ("'[R]estored' .  . . does  not suggest that  the action must  be          individualized.");  Glaser,  14  F.3d  at  1218  ("Nothing  in                                 ______          921(a)(20) distinguishes according to  the frequency with which a          state dispenses some boon."); Thomas, 991 F.2d at 213("[R]ights .                                        ______          . .  reinstated automatically by  operation of law  . . .  are no          less 'restored' than are such  rights that have been  resurrected          by  an 'affirmative act' of the state."); United States v. Gomez,                                                    _____________    _____          911  F.2d  219, 221  (9th Cir.  1990)  ("If Congress  intended to          require  an  individual affirmative  act  of  restoration by  the          state,  Congress could have so provided.").  But see Cassidy, 899                                                       ___ ___ _______          F.2d at  546  (relying  on legislative  history after  concluding          that it was  not clear whether   921(a)(20)  contemplated looking          only at a discrete document or the whole law of a state).                                         -9-          a  convicted felon, id.    1202(a)(1), but exempted  a person who                              ___          had "expressly  been authorized  by the  President or  such chief          executive [of a state] to . . . possess . . . a firearm."  Id.                                                                        ___          1203(2).  There  was no comparable pardon provision applicable to          the shipping or receipt of firearms under former    922(g)(1) and          (h)(1).                  In  1981,  S.  1030   was  introduced,  which,  as  revised,          contained  essentially the  language of  the  last sentence  of            921(a)(20).  See  Cassidy, 899 F.2d  at 547.  A  Senate Judiciary                       ___  _______          Committee Report  explained that the bill would  repair the above          described inconsistency between    922  and 1202 by expanding the          pardon provision to  encompass   922.  See S.  Rep. No. 476, 97th                                                 ___          Cong., 2d Sess. 18  (1982).  In addition, the  explicit reference          to chief executives was dropped and the exemption was expanded to          include expungements and restorations of civil rights.  See id.                                                                    ___ ___               While  such expansion  might indicate  a movement  away from          individualized action, other excerpts provide  a contrary thrust.          For  instance, to demonstrate the  need for the  bill, the report          expressly cited to Thrall v. Wolfe, 503 F.2d 313 (7th Cir. 1974),                             ______    _____          where the court held that a state pardon still did not permit one          to receive or purchase a  firearm.  See S.  Rep. No. 476, at  18.                                              ___          Although the report  made no  mention of  the kind  of pardon  in          Thrall, it was  an individualized one.  The  report also used the          ______          following language to describe  the last clause of    921(a)(20):          "In the event that the official  granting the pardon, restoration                             ____________          of  rights or expungement of record does not desire it to restore                                         -10-          the  right  to  firearm  ownership, this  provision  is  rendered          inapplicable where  the order  or pardon expressly  provides that          the person may not possess firearms."  Id. (emphasis added).  And                                                 ___          it referred to  this last clause as providing "flexibility should          such  a pardon or  restoration be  based upon  considerations not          relating  to fitness  to  own a  firearm."   Id.  at  12.   Taken                                                       ___          together,  these  extracts  might  indicate  that  individualized          actions were intended.                 Nonetheless, we note that  S. 49, the successor to  S. 1030,          was explained by Senator Hatch as addressing the problem  created          by imposing federal sanctions on persons who "have had their full          civil rights restored pursuant to State law."   He added:                This  [bill] will  accommodate  State  reforms  enacted               since 1968  which permit  dismissal of charges  after a               plea  and  successful  completion  of   a  probationary               period.  Since the  Federal prohibition is triggered by               the  States' conviction,  the  States' law  as to  what               disqualifies an  individual  from firearms  use  should               govern.          131  Cong. Rec.  S8,689  (daily ed.  June  24, 1985).   Both  the          reference to reforms  and the  linking of state  power to  define          both   the   triggering   conviction   and   the   conditions  of          disqualification   tilt   toward   the   inclusion   of   generic          restorations of rights.               It could be  and has  been argued that  Congress, which  has          held itself out as endeavoring  to tighten laws against  firearms          abusers,  would not lightly turn over final decision power to the          states,  allowing them  in effect  to nullify  federal sanctions.          But, as the Second Circuit observed,                                          -11-                    The very decision to have restoration triggered by               events governed by state law insured anomalous results.               . .  . They  are the  inevitable consequence  of making               access to  the exemption  depend on the  differing laws               and policies of the several states.          McGrath, 60 F.3d at 1009.          _______               In summary, we discern no such clear and compelling evidence          of Congressional intent to  limit restoration of civil rights  to          individualized  procedures  and  judgments   as  to  change   our          interpretation  of  what  we  deem to  be  unambiguous  language.          Ramos' holding  regarding the  need for individualized  action is          _____          overruled.          B.   Restoration of Rights Not Taken Away               ____________________________________               It remains for us to decide whether civil rights never taken          away can be said to be "restored."  The Ramos panel, dealing with                                                  _____          a person convicted of a misdemeanor, and therefore a person whose          civil rights were left  untouched by Massachusetts law, concluded          that "restore" meant the giving back of what had been taken away.          It   addressed  the   anomaly  that   those  convicted   of  mere          misdemeanors could  never have firearms while  those convicted of          the most  serious crimes could qualify, and  responded that "[b]y          the affirmative  act of  pardon, expungement or  restoration, the          state has declared its renewed trust  in that person."  961  F.2d          at 1009.               In  McGrath,  the  Second   Circuit  agreed,  rejecting  the                   _______          argument  that not having suffered the loss of one's civil rights          is the "functional equivalent" of restoration, explaining, "[t]he          'restoration'  of  a   thing  never  lost  or  diminished   is  a                                         -12-          definitional impossibility." 60  F.3d at 1007.   It discerned  an          intent in the 1986 legislation to treat "a subsequent forgiveness          . . . as an acknowledgement of rehabilitation   or an affirmative          gesture  of goodwill  that  merited exemption  from the  firearms          bar."   Id.   And, as far  as the probability  of "anomalies" was                  __          concerned,  the  court,  as   we  have  noted,  deemed  this   as          inevitable.  It  concluded that only  Congress or the  particular          state can properly address the problem.               This   reasoning,  admittedly   technical,  is   not  easily          dismissed.   The  use  of  the  word  "restore"  calls  for  some          affirmative act  by the state.  It is not cavalierly ignored.  In          the instant case,  however, we  are not confronted  with a  total          absence  of affirmative action, as  in Ramos and  McGrath.  Here,                                                 _____      _______          affirmative action has taken  place with respect to the  right to          sit on a jury (subject to some contingency) and the right to hold          public  office.  Only the right to vote  was not taken away.  The          words of   921(a)(20) literally apply:  Caron is  "a person [who]          . . . has had  civil rights restored."   In this case, therefore,          the dictates of both literalism and sense are met.                 We leave  till another  day the  question whether,  when one                                                                        ___          civil right is restored but two  were never taken away, the  same          answer would  prevail, together  with the basic  question whether          the literal application  of "restore"  to a case  where no  civil          rights were taken  away is so lacking in sense  as to command the          same result.  We  acknowledge, however, that, contrary  to Ramos'                                                                     _____          holding, the  "restoration"  requirement does  not  automatically                                         -13-          exclude  the  possibility  that   rights  never  taken  away  can          sometimes be viewed  as rights  restored.  In  addition, we  note          that   921(a)(20)  would seem to be in need  of revisiting by the          Congress so that the  problems that have busied the  courts might          be resolved in harmony with legislative intent.                                        * * *               Our two  holdings do not dispose of this case.  There remain          other  asserted issues, including whether  the right to  sit on a          jury has been  sufficiently restored, and whether  there has been          an express provision that appellant may not possess firearms.  We          must leave to the district  court the determination whether these          and other  issues  have  been  raised and  preserved,  and  their          disposition on the merits.               The judgment  is  vacated and  the  matter remanded  to  the               ____________________________________________________________          district court for resentencing.   As to all other  issues in the          _________________________________________________________________          case, the original panel opinion shall remain in full force.          ____________________________________________________________                                         -14-
