PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                      No. 96-7215
JOSEPH OSBORNE KAHOE, III, a/k/a
Joseph Kahoe,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CR-95-386-A, CA-96-722-AM)

Argued: December 1, 1997

Decided: January 28, 1998

Before WILKINS, NIEMEYER, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Wilkins wrote the opinion, in
which Judge Niemeyer and Judge Michael joined.

_________________________________________________________________

COUNSEL

ARGUED: Charles Shepherd Cox, Jr., Alexandria, Virginia, for
Appellant. Marcus John Davis, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Vir-
ginia, for Appellee. ON BRIEF: Helen F. Fahey, United States Attor-
ney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.

_________________________________________________________________
OPINION

WILKINS, Circuit Judge:

Joseph Osborne Kahoe, III appeals a decision of the district court
denying his petition for relief pursuant to 28 U.S.C.A. § 2255 (West
1994 & Supp. 1997) from his conviction of being a felon in posses-
sion of a firearm and ammunition. See 18 U.S.C.A. § 922(g)(1) (West
Supp. 1997). Kahoe maintains that the district court erred in conclud-
ing that his conviction should not be set aside on the basis that the
predicate felony for the § 922(g)(1) offense was vacated subsequent
to his commission of that offense. We affirm the judgment of the dis-
trict court.

I.

In March 1994, Kahoe pled guilty in the district court for the Dis-
trict of Columbia to carrying a firearm during and in relation to a drug
trafficking offense. See 18 U.S.C.A. § 924(c)(1) (West Supp. 1997).
In August 1994, while he was on release pending sentencing, Kahoe
was found to be in possession of a firearm and ammunition and subse-
quently was convicted of violating 18 U.S.C.A. § 922(g)(1), with the
March 1994 conviction serving as the disabling predicate felony.
Thereafter, a district court in the District of Columbia set aside
Kahoe's March 1994 conviction, ruling that § 2255 relief was appro-
priate in light of the decision of the Supreme Court in Bailey v. United
States, 116 S. Ct. 501 (1995) (holding that a firearm must be actively
employed to satisfy the "use" prong of § 924(c)(1)). Having obtained
relief from the underlying predicate felony, Kahoe next moved the
district court for the Eastern District of Virginia for § 2255 relief from
his § 922(g)(1) conviction, arguing that the latter conviction could not
stand once the underlying predicate conviction had been set aside.
The district court denied relief, holding that its decision was con-
trolled by Lewis v. United States, 445 U.S. 55 (1980).

II.

Section 922(g)(1) provides, "It shall be unlawful for any person ...
who has been convicted in any court of[ ] a crime punishable by

                     2
imprisonment for a term exceeding one year ... to .. possess in or
affecting commerce[ ] any firearm or ammunition." The term "crime
punishable by imprisonment for a term exceeding one year" is defined
in 18 U.S.C.A. § 921(a)(20) (West Supp. 1997). In general,
§ 921(a)(20) defines this term to exclude various offenses relating to
business practices and offenses classified by state law as misdemea-
nors punishable by two years imprisonment or less. Of particular rele-
vance here, § 921(a)(20) also states:

         What constitutes a conviction of such a crime shall be deter-
         mined in accordance with the law of the jurisdiction in
         which the proceedings were held. 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 consid-
         ered 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.

18 U.S.C.A. § 921(a)(20) (emphasis added). Kahoe contends that
because the "crime punishable by imprisonment for a term exceeding
one year" that provided the disabling predicate offense for his
§ 922(g)(1) conviction--i.e., his March 1994 conviction--has now
been "set aside," it does not qualify as a conviction for purposes of
§ 922(g)(1), and thus his § 922(g)(1) conviction cannot stand.

In Lewis v. United States, 445 U.S. 55 (1980), the Supreme Court
addressed whether a prior state felony conviction supplied the neces-
sary predicate conviction for a violation of 18 U.S.C. app.
§ 1202(a)(1) (Supp. IV 1969)--proscribing"[a]ny person who ... has
been convicted by a court of the United States or of a State ... of a
felony" from possessing a firearm--if the predicate offense was sub-
ject to collateral attack under Gideon v. Wainwright, 372 U.S. 335
(1963). The Court held that such an offense did supply the predicate
conviction. The Court first reasoned that the sweeping and unambigu-
ous language of § 1202(a)(1) prohibited possession of a firearm by
any person who had been convicted of a felony. See Lewis, 445 U.S.
at 60-61. That the disabling conviction was unconstitutionally
obtained did not alter the fact that the defendant had been convicted
of a felony at the time he possessed the firearm. See id.

                    3
Turning from the language of the statute itself, the Court concluded
that "[o]ther provisions ... demonstrate[d] and reinforce[d] its" reading
of § 1202(a)(1). Id. at 61. Specifically, the Court found persuasive
that 18 U.S.C. app. § 1203 (Supp. IV 1969) enumerated certain
exceptions to § 1202(a)(1), but did not include an exception for one
"whose outstanding felony conviction ultimately might turn out to be
invalid for any reason." Id. at 62. Thus, the Court ruled, § 1202(a)(1)
stood "in contrast with other federal statutes that explicitly permit a
defendant to challenge, by way of defense, the validity or constitu-
tionality of the predicate felony." Id.

The Court also determined that the structure of the Omnibus Crime
Control and Safe Streets Act of 1968, which enacted§ 1202, sup-
ported its reading of the statute. See id. at 63-64. The Court noted that
§ 1202--which was a portion of Title VII of the Act--was enacted
contemporaneously with § 922(g) and (h)--which were in Title IV of
the Act--and explained that these provisions created categories of
presumptively dangerous persons who were prohibited from possess-
ing firearms:

             Actually, with regard to the statutory question at issue here,
             we detect little significant difference between Title IV and
             Title VII. Each seeks to keep a firearm away from"any per-
             son ... who has been convicted" of a felony, although the
             definition of "felony" differs somewhat in the respective
             statutes. But to limit the scope of §§ 922(g)(1) and (h)(1) to
             a validly convicted felon would be at odds with the statutory
             scheme as a whole. Those sections impose a disability not
             only on a convicted felon but also on a person under a fel-
             ony indictment, even if that person subsequently is acquitted
             of the felony charge. Since the fact of mere indictment is a
             disabling circumstance, a fortiori the much more significant
             fact of conviction must deprive the person of a right to a
             firearm.

Id. at 64.

Having determined that the statute was not ambiguous, the Court
held that it was necessary neither to apply the rule of lenity nor to
construe the statute in a manner that avoided the question of whether

                       4
an invalid conviction constitutionally could provide a predicate
offense. See id. at 65. And, the Court concluded that use of an invalid
conviction did not violate the equal protection guarantee of the Due
Process Clause of the Fifth Amendment because there was a rational
basis to believe that a felony conviction, even an invalid one, was an
adequate basis on which to prohibit firearm possession. See id. at 65-
66. Moreover, the Court specifically ruled that the use of an invalid
conviction as a disabling predicate for a § 1202(a)(1) conviction was
not inconsistent with Loper v. Beto, 405 U.S. 473 (1972); United
States v. Tucker, 404 U.S. 443 (1972); and Burgett v. Texas, 389 U.S.
109 (1967), in which the Court held that uncounseled convictions
could not be used for impeachment purposes during the trial of a sub-
sequent offense, to enhance a sentence, or to serve as a predicate con-
viction for a recidivist statute. See Lewis, 445 U.S. at 60, 66-67. The
Court reasoned:

          In each of those cases, this Court found that the subsequent
          conviction or sentence violated the Sixth Amendment
          because it depended upon the reliability of a past uncoun-
          seled conviction. The federal gun laws, however, focus not
          on reliability, but on the mere fact of conviction, or even
          indictment, in order to keep firearms away from potentially
          dangerous persons. Congress' judgment that a convicted
          felon, even one whose conviction was allegedly uncoun-
          seled, is among the class of persons who should be disabled
          from dealing in or possessing firearms because of potential
          dangerousness is rational.

Id. at 67. In closing, the Court emphasized that "a convicted felon
may challenge the validity of a prior conviction, or otherwise remove
his disability, before obtaining a firearm." Id.

Kahoe recognizes that the broad reasoning of Lewis, if applicable,
is fatal to his position. But, he argues that Lewis is distinguishable
because subsequent to that decision, Congress amended § 921(a)(20)
in 1986 to include the language stating that a conviction that has been
"set aside ... shall not be considered a conviction for purposes of this
chapter." Kahoe contends that this amended language, contrary to that
at issue in Lewis, evinces congressional intent that a conviction that
has been vacated may not serve as a disabling predicate felony to sup-

                    5
port a § 922(g)(1) conviction. We agree with the district court, how-
ever, that the Lewis decision is controlling; nothing in the amendment
or the legislative history of the amendment indicates an intent to over-
rule Lewis.

The plain language of § 921(a)(20) means that a conviction that has
been set aside can no longer be disabling.1 The language does not pro-
vide that such a conviction was not disabling between the time it was
obtained and the time it was set aside. See United States v. Lee, 72
F.3d 55, 58 (7th Cir. 1995) (rejecting a defendant's argument that
Lewis did not survive the amendment to § 921(a)(20) and thus that he
could not be convicted under § 922(g)(1) since his prior conviction
was expunged after the possession at issue but prior to trial); United
States v. Chambers, 922 F.2d 228, 238 (5th Cir. 1991) (stating that
even "convictions deemed void ab initio under state law for reasons
classified as jurisdictional nevertheless remain convictions for pur-
poses of section 922(g) until set aside"); United States v. Davis, 753
F. Supp. 529, 531 (D. Vt. 1990) (rejecting argument identical to that
raised by Kahoe). And, the legislative history of the amendment sup-
ports this conclusion. Subsequent to Lewis, the Supreme Court
decided Dickerson v. New Banner Institute, Inc. , 460 U.S. 103 (1983),
which held that a state court conviction remained a conviction for
purposes of § 922(g)(1) even though the possession occurred after the
conviction had been removed by the state from the defendant's
record. See id. at 110-22; see also Thrall v. Wolfe, 503 F.2d 313 (7th
Cir. 1974) (same). The Senate report indicates that§ 921(a)(20) was
amended in response to Dickerson and Thrall. The report cited
Dickerson and Thrall and provided that§ 921(a)(20)

            would exclude from such convictions any for which a per-
            son has received a pardon, civil rights restoration, or
            expungement of the record. Existing law incorporates a sim-
            ilar provision with respect to pardons in 18 U.S.C. app.
            1202, relating to possession of firearms, but through over-
_________________________________________________________________
1 Of course, § 921(a)(20) leaves open the possibility that such a convic-
tion nevertheless may remain a "crime punishable by imprisonment for
a term exceeding one year" if the "pardon, expungement, or restoration
of civil rights expressly provides that the person may not ship, transport,
possess, or receive firearms." 18 U.S.C.A. § 921(a)(20).

                    6
          sight does not include any conforming provision in 18
          U.S.C. 922, dealing with their purchase or receipt. This
          oversight, which resulted in a ruling that a state pardon does
          not permit a pardoned citizen to receive or purchase a fire-
          arm, despite the express provision in the pardon that he may
          possess it, would be corrected. In the event that the official
          granting the pardon, restoration of rights, or expungement of
          record does not intend that it restore the right to firearm
          ownership, this provision honors that intent as expressly
          provided in the order or pardon.

S. Rep. No. 98-583, at 7 (1984) (footnote omitted). By contrast, the
Senate report did not cite to Lewis or discuss application of its rule.
See id. Neither the amended language of § 921(a)(20) nor the legisla-
tive history of the amendment counsels a result contrary to that set
forth in Lewis, and we determine that Lewis is controlling.

Even so, one court of appeals has accepted Kahoe's reading of
§ 921(a)(20). In United States v. Pettiford, 101 F.3d 199 (1st Cir.
1996), the court considered whether a sentencing enhancement
imposed under the Armed Career Criminal Act (ACCA) of 1984, 18
U.S.C.A. § 924(e) (West Supp. 1997), was subject to collateral attack
after the vacatur of several state convictions that had served as the
basis for the enhancement. Section 924(e)(1) provides a mandatory
minimum 15-year sentence for one convicted of violating § 922(g)
who "has three previous convictions by any court referred to in sec-
tion 922(g)(1) of this title for a violent felony or a serious drug
offense, or both, committed on occasions different from one another."
18 U.S.C.A. § 924(e)(1). By referencing § 922(g)(1), § 924(e)(1)
incorporates the definition of § 921(a)(20) for a "crime punishable by
imprisonment for a term exceeding one year." Accordingly, the mean-
ing of the amended language of § 921(a)(20) with respect to a subse-
quently vacated conviction was at issue in Pettiford.

Without analysis of or citation to Lewis or the legislative history of
the amendment to § 921(a)(20), the Pettiford court rejected the Gov-
ernment's argument that the pertinent language of§ 921(a)(20) "indi-
cate[d] that only past offenses vacated prior to the federal proceeding
may be discounted by the court," determining that the provision "read
equally well if applied to convictions expunged, etc., subsequent to

                    7
the federal sentencing." Pettiford, 101 F.3d at 201. On this basis, the
court concluded that the rule of lenity applied and, thus, that
§ 921(a)(20) must be read to require that a subsequently vacated con-
viction is not a "crime punishable by imprisonment for a term exceed-
ing one year." See id.

We cannot accept this reasoning. Assuming that the Pettiford court
was correct in concluding that the amended language of § 921(a)(20)
is ambiguous because it is as easily read to apply to convictions that
are set aside after the commission of the firearm possession as to
those that are set aside before it, an application of the rule of lenity
nevertheless would be inappropriate.2 The rule of lenity does not
apply unless a "`grievous ambiguity or uncertainty,'" Chapman v.
United States, 500 U.S. 453, 463 (1991) (quoting Huddleston v.
United States, 415 U.S. 814, 831 (1974)), remains even after we have
looked to the language, structure, and legislative history of the statute,
see Moskal v. United States, 498 U.S. 103, 108 (1990). See United
States v. Wildes, 120 F.3d 468, 471 (4th Cir. 1997) (same), petition
for cert. filed, ___ U.S.L.W. ___ (U.S. Oct. 22, 1997) (No. 97-6533);
United States v. Mitchell, 39 F.3d 465, 470 (4th Cir. 1994) (same).
Here, the legislative history makes plain that the purpose of the
amendment to § 921(a)(20) was to overrule Dickerson and Thrall,
with the result being that a felony conviction would no longer be a
disabling circumstance after the conviction was set aside unless the
remaining conditions of the section are met. Furthermore, the struc-
ture of the statutory provisions indicates that Congress intended to
establish disabling classes of presumptively dangerous individuals not
limited to those who are validly convicted. See Lewis, 445 U.S. at 64;
see also 18 U.S.C.A. § 922(n) (West Supp. 1997) (prohibiting posses-
sion of a firearm by one indicted for a "crime punishable by imprison-
_________________________________________________________________
2 We note that we are not called upon to decide the ultimate question
before the court in Pettiford--whether a defendant is entitled to § 2255
relief if a district court relied upon a prior conviction to enhance a federal
sentence and subsequently the prior conviction was set aside. We recog-
nize that the Supreme Court left that issue open in Custis v. United
States, 511 U.S. 485, 497 (1994). Here, however, as in Lewis, the prior
conviction was used to impose a civil firearms disability, not in a way
that depended upon the reliability of the prior conviction. See Lewis, 445
U.S. at 67.

                    8
ment for a term exceeding one year"). Therefore, we disagree with the
Pettiford court that the rule of lenity has application in this circum-
stance.

III.

For the foregoing reasons, we hold that Lewis dictates that the fact
that Kahoe's conviction was vacated after he possessed the firearm
and ammunition is irrelevant. The portion of § 921(a)(20) providing
that a "crime punishable by imprisonment for a term exceeding one
year" shall not include "[a]ny conviction which has been ... set aside"
means that after a conviction has been set aside it is no longer a dis-
abling circumstance unless the remaining requirements of that section
are met. Therefore, because Kahoe's March 1994 conviction was a
disabling predicate offense when he possessed the firearm and ammu-
nition, we affirm the denial of § 2255 relief.

AFFIRMED

                    9
