                                                                                 FILED
                                                                     United States Court of Appeals
                                        PUBLISH                              Tenth Circuit

                      UNITED STATES COURT OF APPEALS                        August 28, 2012

                                                                         Elisabeth A. Shumaker
                                   TENTH CIRCUIT                             Clerk of Court


 UNITED STATES OF AMERICA,

        Plaintiff-Appellee,
                                                              No. 11-3255
 v.

 TAURUS D. HOYLE,

        Defendant-Appellant.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF KANSAS
                     (D.C. No. 2:10-CR-20056-CM-1)


R. Bruce Kips, Shawnee, Kansas, for Defendant-Appellant.

James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States
Attorney for the District of Kansas, with him on the brief), Topeka, Kansas, for Plaintiff-
Appellee.


Before LUCERO, HOLLOWAY, and MATHESON, Circuit Judges.


HOLLOWAY, Circuit Judge.



       Defendant-Appellant Taurus D. Hoyle appeals his conviction for being a felon in

possession of a firearm, and also appeals his sentence under the Armed Career Criminal
Act (“ACCA”) to 262 months’ imprisonment. In the conviction challenge, Mr. Hoyle

contends that the government offered insufficient evidence that he possessed a firearm,

and that the charged possession affected interstate commerce. We reject Mr. Hoyle’s

arguments on this score, and AFFIRM his conviction.

       In the sentencing challenge, Mr. Hoyle argues that two of the three prior

convictions relied upon by the district court (both were Kansas state law convictions) do

not qualify as predicate convictions for the ACCA’s enhanced sentencing provisions.

Specifically, Mr. Hoyle argues that the two Kansas convictions are not such qualifying

predicates because the convictions no longer disqualify him from possessing firearms as a

matter of state law. We agree that Mr. Hoyle’s firearm possession rights were restored by

operation of state law, thus precluding either of the two state convictions from qualifying

as ACCA predicates. We therefore VACATE Mr. Hoyle’s sentence, and REMAND to

the district court for resentencing.



                                       I. BACKGROUND

                          A. Summary of material trial testimony.

       1. Tyda Hall

       Tyda Hall, a resident of Kansas City, Kansas, testified that she was socializing at

the house of her neighbor, Alex Adams, on March 30, 2010. Mr. Hoyle, whom Ms. Hall

identified in court, was on the front porch of Mr. Adams’s home. Mr. Adams asked Mr.

                                             2
Hoyle to leave, but Mr. Hoyle refused to do so. Ms. Hall heard the commotion and also

asked Mr. Hoyle to leave. By this time, Mr. Hoyle had become agitated and was yelling

at Ms. Hall. Ms. Hall went back inside Mr. Adams’s home while Mr. Adams and others

tried to keep Mr. Hoyle under control. Upon going back inside, Ms. Hall heard Mr.

Adams say something about a gun. Ms. Hall turned around and saw that Mr. Hoyle

possessed a silver revolver. At that point, Mr. Hoyle pointed the gun at Ms. Hall and

threatened to shoot her. Subsequently, Ms. Hall called 911, and Mr. Hoyle fled. During

the 911 call, Ms. Hall described the gun held by Mr. Hoyle as a silver revolver, and also

described Mr. Hoyle’s clothing. Upon the arrival of police officers, Ms. Hall indicated

the direction of Mr. Hoyle’s flight.



       2. Stacey Bradley

       Stacey Bradley is Ms. Hall’s sister, and shares a residence with Ms. Hall. On the

day in question, March 30, 2010, Ms. Bradley was in her own home (the one she shared

with Ms. Hall) while Ms. Hall and Mr. Hoyle were at Mr. Adams’s house. Ms. Bradley

testified that she heard some of the commotion caused by Mr. Hoyle, and observed him

waving a silver revolver around as he walked away from Mr. Adams’s home.




                                            3
      3. Officer Rodriguez

      Officer Ruben Rodriguez is a community police officer with the Kansas City

Police Department (“KCPD”). Rodriguez responded to a dispatch call resulting from Ms.

Hall’s 911 call. The dispatcher reported Ms. Hall’s description of the gun-toting

individual. Not far from the location where Ms. Hall last saw Mr. Hoyle, Officer

Rodriguez located an individual (later identified as Mr. Hoyle) matching the description

provided by Ms. Hall. Although Officer Rodriguez did not see a gun in Mr. Hoyle’s

possession, when he tried to make contact with Mr. Hoyle, Hoyle ran away and Officer

Rodriguez noticed that “it looked like [Mr. Hoyle] was holding something.” Officer

Rodriguez, joined by other police officers, pursued Mr. Hoyle through the neighborhood.

      Another KCPD officer, Officer William Saunders, apprehended Mr. Hoyle and

tackled him to the ground. After Mr. Hoyle was subdued, Officer Rodriguez saw that

Mr. Hoyle’s hands were scratched and had a small amount of blood on them. Officer

Rodriguez did not find a gun on Mr. Hoyle’s person.



      4. Officer Saunders

      Officer William Saunders testified that he searched the immediate vicinity shortly

after he apprehended Mr. Hoyle. Under an automobile, Officer Saunders found a silver

revolver. Officer Saunders took custody of the gun, which was loaded with live

ammunition, and secured it. Officer Saunders explained that the firearm could be fired

                                            4
when loaded with a round in the cylinder, but admitted that neither he nor any other

officer ever test-fired the weapon.



       5. Detective Greeno

       Pat Greeno, a KCPD detective, testified that Mr. Hoyle made several incriminating

statements during various interactions. First, during an initial interview at the Wyandotte

County Jail (where Mr. Hoyle was initially held upon his arrest), Mr. Hoyle asked

whether he would be prosecuted by state or federal authorities. According to Detective

Greeno, Mr. Hoyle explained that he wanted to know that information because he was a

felon caught with a gun, and a federal holding facility was where he was supposed to be.

       Later, Detective Greeno obtained and executed a search warrant which allowed

him to obtain a DNA sample from Mr. Hoyle. While Detective Greeno transported Mr.

Hoyle to the United States Marshal’s booking facility, Mr. Hoyle asked, “[C]an I plead

guilty today?” As Detective Greeno recited the terms of the search warrant to Mr. Hoyle,

Mr. Hoyle interrupted him and said: “I’m guilty of this, man. You don’t need to go

through all this.” This statement was also witnessed by Agent Chris Concannon of the

Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”).




                                             5
       6. Barbara Crim-Swanson

       Barbara Crim-Swanson is a forensic scientist employed by the Kansas Bureau of

Investigation’s scientific laboratory. She compared a sample of Mr. Hoyle’s DNA

(collected by Detective Greeno) to a sample of the blood found on the silver revolver.

(The blood sample was drawn by Officer Ross Hatfield of the KCPD; Officer Hatfield

testified about his collection of the blood sample, and that he did not find any fingerprints

on the gun.) Ms. Crim-Swanson testified that the blood taken from the revolver matched

Mr. Hoyle’s DNA.



       7. Gordon Mallory

       Gordon Mallory, an ATF agent, testified about his investigation of the silver

revolver at issue in this case. He explained that he typically determined a weapon’s place

of manufacture by researching periodicals, magazines, and an internal law enforcement

database. Agent Mallory testified that, based on his research in this case and his

expertise, he believed the silver revolver found near Mr. Hoyle was manufactured by

Smith & Wesson in Springfield, Massachusetts in either 1980 or 1981.




                                              6
                           II. THE CONVICTION CHALLENGE

              A. Scope of Mr. Hoyle’s challenge to the sufficiency of the evidence.

       Mr. Hoyle was charged with and tried for a violation of 18 U.S.C. § 922(g)(1),

which makes it unlawful for any convicted felon to “possess in or affecting commerce,

any firearm or ammunition.” When trying a defendant for a violation of § 922(g)(1), the

government bears the burden of proving the following beyond a reasonable doubt: “(1)

that the defendant was previously convicted of a felony; (2) that the defendant thereafter

knowingly possessed a firearm or ammunition; and (3) that the possession was in or

affecting interstate commerce.” United States v. Colonna, 360 F.3d 1169, 1178 (10th

Cir. 2004).

       Mr. Hoyle challenges the sufficiency of the evidence offered at trial, claiming that

the government failed to meet its burden of proof on the latter two elements described

above. The challenge as to the second element — knowing possession of a firearm —

actually contains two separate strands of argument. First, Mr. Hoyle argues that the

government presented insufficient evidence that Mr. Hoyle himself actually possessed the

gun presented as evidence at trial; and second, he argues that the gun was not a “firearm”

as that term is defined in the relevant statute. As to the third element of the crime, Mr.

Hoyle argues that the government offered insufficient evidence that the charged

possession was in or affecting interstate commerce.



                                               7
         B. Standard of review when considering the sufficiency of the evidence.

       “In reviewing the sufficiency of the evidence to support a conviction or a denial of

a motion for judgment of acquittal, we review the record de novo to determine whether,

viewing the evidence in the light most favorable to the government, a reasonable jury

could have found the defendant guilty of the crime beyond a reasonable doubt.”

Colonna, 360 F.3d at 1178.




                          C. Possession of the gun by Mr. Hoyle.

        Mr. Hoyle argues that the government offered insufficient evidence that Mr.

Hoyle ever possessed the gun found by Officer Saunders. In support of his claim, Hoyle

identifies six facts: (1) no police officer saw him with a firearm; (2) the police did not

elicit tape-recorded or written statements from either Ms. Hall or Ms. Bradley; (3) Ms.

Hall’s and Ms. Bradley’s identifications of Mr. Hoyle in and out of court were tainted

because they were shown a photo array at the same time; (4) Officer Saunders did not see

any blood on the gun when he retrieved it from underneath the automobile; (5) no

pictures of the crime scene showed blood on the gun or on Mr. Hoyle’s hand; and (6) Mr.

Hoyle’s fingerprints were not found on the gun.

       The first three facts listed amount to challenges to the credibility of the testimony

of Ms. Hall and Ms. Bradley, and thus are a request for us to reweigh the evidence on

                                              8
appeal. We do not do this. With the fourth, fifth, and sixth facts, Mr. Hoyle attempts to

show gaps in forensic evidence. But these facts do nothing to undermine the convincing

DNA evidence offered by the government. Mr. Hoyle has not challenged the reliability

of that evidence, which tends to show that the gun found by Officer Saunders was in Mr.

Hoyle’s possession before he was arrested. Accordingly, we decline to overturn the

jury’s conclusion that Mr. Hoyle possessed the silver revolver found by Officer Saunders.




                               D. Possession of a “firearm.”

       For purposes of the felon-in-possession statute, the term “firearm” is defined as

“any weapon (including a starter gun) which will or is designed to or may readily be

converted to expel a projectile by the action of an explosive.” 18 U.S.C. § 921(a)(3)(A).

       Mr. Hoyle argues that the government’s evidence was insufficient to prove that the

silver revolver in question in this case was a “firearm” as the term is defined in the

relevant statute. Specifically, he points to the absence of any testimony that the revolver

was ever test-fired by any police officer. The government, on the other hand, points out

that Officer Saunders’s explanation that the revolver could be fired when loaded with live

ammunition is sufficient to support the conclusion that the weapon was designed to expel

a projectile by the action of an explosive.



                                              9
       In United States v. Smith, 472 F.3d 752, 754 (10th Cir. 2006), we upheld a

conviction under § 922(g)(1) where the government presented evidence that weapons

found in the defendant’s possession were “fully intact, loaded, and ready to be fired” and

a lay witness testified that she had seen the defendant fire some of the weapons two

weeks before the defendant’s arrest. Mr. Hoyle argues that Smith stands for the

proposition that actual observations of a weapon’s operability are required to sustain a

§ 922(g)(1) conviction. We disagree.

       A weapon need not be operable in order to qualify as a “firearm” under

§ 921(a)(3)(A). As long as the weapon is “designed to” expel a projectile due to the

action of an explosive, it qualifies. Our court has not expressly stated the bare minimum

evidence that is required to make such a showing. It is true that in previous cases where

we upheld convictions against sufficiency challenges resembling the one brought by Mr.

Hoyle, the government had presented evidence that a weapon was test-fired. See United

States v. Cox, 934 F.2d 1114, 1121 (10th Cir. 1991) (rejecting sufficiency challenge

where “an Alcohol, Tobacco and Firearms agent testified that the weapons had been test

fired, were operable and that, in his opinion, they were firearms as defined by §

921(a)(3)”); United States v. Allen, 235 F.3d 482, 492-93 (10th Cir. 2000) (upholding

conviction where agent test-fired weapon with blank ammunition).

       Our conclusions in those cases, however, do not mean that evidence of test-firing

is required in order to show that a weapon is actually a firearm. Officer Saunders had

                                            10
twenty-five years of law enforcement experience when he testified at trial about the gun

he found near Mr. Hoyle. Given Officer Saunders’s extensive experience, a rational juror

could rely on his ability to establish whether a gun “may readily be converted to expel a

projectile by the action of an explosive.” To be sure, evidence of test-firing may be more

persuasive than mere observations about a gun’s appearance. But nothing in the text of

§ 921(a)(3)(A) suggests that test-firing (or lay observations of live-firing) is required;

indeed, the text suggests exactly the opposite by including in the definition of “firearm” a

weapon which is “designed” to fire live ammunition.1




       1
         Mr. Hoyle points us to no case suggesting that evidence like that offered in this
case is insufficient to establish that a weapon is a “firearm” under § 921(a)(3); indeed,
courts routinely hold that similar evidence is adequate. See, e.g., United States v. Abdul-
Aziz, 486 F.3d 471, 477 (8th Cir. 2007) (upholding conviction where an agent testified
that “the rifle was designed to expel a projectile through the use of an explosive and, to
the best of his knowledge, was a functioning firearm”); United States v. Redd, 161 F.3d
793, 797 (4th Cir. 1998) (“[E]yewitness testimony is sufficient to prove that a person
used a firearm.”); United States v. Castillo, 924 F.2d 1227, 1230 (2d Cir. 1991) (evidence
sufficient to prove that unrecovered gun was “firearm” where witness was a police officer
who had “extensive training and familiarity in the identification and use of firearms”);
see also United States v. Cruz-Diaz, 550 F.3d 169, 173 (1st Cir. 2008) (declining to
overturn conviction where the government only offered descriptive testimony by lay
witnesses that they perceived guns used by the defendant to be real); United States v.
Beverly, 99 F.3d 570, 572-73 (3d Cir. 1996) (descriptive testimony by lay witness
sufficient to allow jury to infer that weapon was a “firearm”); Parker v. United States,
801 F.2d 1382, 1384 (D.C. Cir. 1986) (same).


                                             11
                    E. Possession in or affecting interstate commerce.

       “Section 922(g) requires that the firearm be possessed ‘in or affecting

commerce.’” United States v. Williams, 403 F.3d 1188, 1195 (10th Cir. 2005) (quoting

18 U.S.C. § 922(g)). The Supreme Court has affirmed the Fourth Circuit’s holding that:

“[T]he interstate commerce nexus requirement of the possession offense was satisfied by

proof that the firearm [defendant] possessed had previously traveled in interstate

commerce.” Scarborough v. United States, 431 U.S. 563, 566 (1977).

       Mr. Hoyle argues that the testimony of Agent Gordon Mallory was insufficient to

prove this element of the crime. Specifically, he argues that “there was no testimony as

to what [Agent Mallory] researched” in concluding that the silver revolver — which was

undisputedly located in Kansas when Mr. Hoyle was arrested — had been manufactured

in Massachusetts years earlier.

       We reject Mr. Hoyle’s argument. For one thing, in addition to Agent Mallory’s

testimony about the gun’s nexus with interstate commerce, Detective Greeno testified

that he ran a trace on the gun which revealed it had been shipped from its manufacturer to

the Massachusetts Institute of Technology in 1981. Further, a rational juror could infer

from Agent Mallory’s testimony that his typical research techniques — looking at

periodicals, magazines, and internal ATF databases — were applied in this case. Of

course, a more specific statement of the actual research in this case might have resulted in

more persuasive evidence. But Mr. Hoyle did not and does not challenge the

                                            12
admissibility of Agent Mallory’s opinion on the manufacture of the specific gun involved

in this case; indeed, Mr. Hoyle declined to cross-examine Agent Mallory at all.

       Agent Mallory’s testimony, which for purposes of this appeal must be taken as

true, showed that the gun was manufactured in Springfield, Massachusetts, and that in

any event the manufacturer had never manufactured any guns in the state of Kansas.

Furthermore, Detective Greeno’s trace of this weapon, which showed it having been sold

to the Massachusetts Institute of Technology in the early 1980s, tends to confirm Agent

Mallory’s analysis. If believed, the “interstate nexus” testimony, taken as a whole, would

allow a rational juror to infer that the gun in this case had “previously traveled in

interstate commerce.” Id. at 566-67.



                          III. THE SENTENCE CHALLENGE

                                   A. ACCA background.

       Mr. Hoyle claims that the district court erred by classifying him as an armed

career criminal pursuant to the ACCA, which is codified at 18 U.S.C. § 924(e). Section

924(e) applies to defendants who violate § 922(g) by having firearms or ammunition

when they have at least three previous convictions for crimes classified either as “violent

felon[ies]” or “serious drug offense[s].” We generally refer to one whose criminal

history meets the requirements of § 924(e) as an “armed career criminal.”



                                             13
       If the district court concludes that a defendant is an armed career criminal, he is

automatically subject to a 15-year mandatory minimum prison sentence. In addition, the

Sentencing Guidelines also single out armed career criminals for an enhanced Guidelines

sentencing range. Specifically, armed career criminals have their offense level elevated,

regardless of what the offense level would have been in the absence of armed career

criminal status. U.S.S.G. § 4B1.4. When a defendant’s § 922(g) charge is associated

with the commission of a crime of violence (as Mr. Hoyle’s was), the base offense level

is 34. Id. § 4B1.4(b)(2).

       The district court concluded that three of Mr. Hoyle’s prior convictions qualified

as ACCA predicates: (1) his 1994 Kansas state law conviction for aggravated assault in

Wyandotte County (Kansas) District Court; (2) his 1994 Kansas state law conviction for

aggravated escape from custody, also in Wyandotte County (Kansas) District Court; and

(3) his 1995 federal conviction for possessing five or more grams of cocaine base in

violation of 21 U.S.C. § 844. Thus, Mr. Hoyle was sentenced as an armed career

criminal. Mr. Hoyle’s undisputed criminal history category was VI. This criminal

history status, coupled with an offense level of 34, resulted in an advisory Guidelines




                                             14
range of 262-327 months’ imprisonment. The district court ultimately sentenced Mr.

Hoyle to 262 months’ imprisonment.2



                        B. Mr. Hoyle’s armed career criminal status.

       We turn to Mr. Hoyle’s argument that the district court erroneously counted two

state convictions as violent felonies under the ACCA. Mr. Hoyle argues that these

convictions do not qualify as ACCA predicates because Kansas law restored to him the

civil rights that he lost as a result of the convictions.

       A prior conviction is not a violent felony under the ACCA if a defendant has civil

rights restored to him upon or after his release from imprisonment.

18 U.S.C. § 921(a)(20). In the Tenth Circuit, we look to the whole of state law, rather

than only at a certificate of restoration of civil rights upon release from parole or

imprisonment, in determining whether a defendant’s civil rights have been restored.

United States v. Baker, 508 F.3d 1321, 1328 (10th Cir. 2007). The ACCA’s civil rights

restoration exception does not apply if the defendant does not have his right to ship,

transport, possess, or receive firearms restored. 18 U.S.C. § 921(a)(20). Mr. Hoyle

argues that his two Kansas state convictions do not count as ACCA predicates because



       2
       If Mr. Hoyle was not an armed career criminal, his statutory maximum sentence
would have been 120 months’ imprisonment. See 18 U.S.C. § 924(a)(2).


                                               15
his civil rights — including his right to possess firearms — were reinstated by operation

of Kansas law by the time he committed the § 922(g) offense for which he was sentenced

as an armed career criminal.

       By the time Mr. Hoyle violated 18 U.S.C. § 922(g), he had most of his civil rights

restored to him by operation of Kansas law.3 See Kan. Stat. Ann. § 27-3722 (2010). This

general restoration of civil rights, however, did not restore his right to possess firearms.

The firearm possession right was governed by Kan. Stat. Ann. § 21-4204 (2010). The

parties hotly dispute which precise provision of Kan. Stat. Ann. § 21-4204 applied to Mr.

Hoyle. Mr. Hoyle argues that he was subject to Kan. Stat. Ann. § 21-4204(a)(4) (2010),

which imposes a ten-year ban on firearms possession, with the clock running from the

date of release from imprisonment or parole. The government, on the other hand, argues




       3
         Kansas overhauled its criminal code, including its civil rights restoration laws, in
2011, but the parties agree that the laws in effect at the time the defendant committed the
§ 922(g) offense — i.e. as of March 30, 2010 — are what govern our interpretation of the
ACCA in this case. See State v. Lueker, 956 P.2d 681 (Kan. 1998) (under Kansas law,
firearms possession rights are determined as of the date the firearm was allegedly
illegally possessed).

       This point is underscored by ex post facto concerns. Applying Kansas’s amended
laws to the disfavor of Mr. Hoyle would almost surely constitute applying a more severe
substantive criminal law enacted after commission of the § 922(g) offense, running afoul
of the Constitution’s ex post facto clauses, U.S. Const. art. I, § 9, cl. 3 and art. I, § 10, cl.
1.


                                               16
that Mr. Hoyle was subject to Kan. Stat. Ann. § 21-4204(a)(2) (2010), which imposes a

lifetime ban on firearms possession.



       1. The district court’s ruling.

       The district court did not rule on either of the parties’ contentions that are before

us on appeal. Instead, the district court held that Mr. Hoyle’s firearms ban — regardless

of whether it lasted only ten years — did not start until 2004, when Mr. Hoyle was

released from federal custody.

       Upon Mr. Hoyle’s release from Kansas’s custody in 1998 on his state law

convictions, he was immediately transferred into federal custody so that he could serve

the time remaining on a separate federal sentence, which was running concurrently with

his state sentence. Mr. Hoyle was not released from federal custody until 2004. Thus,

the district court reasoned that Mr. Hoyle’s firearms ban, even if it was only ten years in

duration, would not expire until 2014. The government confesses that this is an

erroneous understanding of Kansas’ restoration statute. Aplee. Brief at 37. Although we

are not bound to accept the government’s confession of error,4 upon undertaking our own




       4
        In Young v. United States, 315 U.S. 257, 258-59 (1942), the Supreme Court
explained that courts have a duty to examine whether there has been an error of law by a
lower court, even when error is confessed by the government:

                                                                               (continued…)
                                             17
analysis of the statutory scheme, we agree that the district court erred in deciding that the

clock on the firearms ban resulting from the state law convictions began to run in 2004.

       Let us assume arguendo that Mr. Hoyle was, as he contends, subject to a ten-year

firearms ban. Under Kan. Stat. Ann. § 21-4204(a)(4) (2010), that ban applied to any

individual who, like Mr. Hoyle, was convicted of a felony pursuant to Kan. Stat. Ann.

§ 21-3410 (2010). The ban begins to run when the felon is “released from imprisonment

for such felony.” (emphasis added). We cannot square that statutory language with the

district court’s conclusion that the ten-year ban begins to run only after the defendant is

released from imprisonment entirely.




(…continued)


       The public trust reposed in the law enforcement officers of the Government
       requires that they be quick to confess error when, in their opinion, a
       miscarriage of justice may result from their remaining silent. But such a
       confession does not relieve this Court of the performance of the judicial
       function. The considered judgment of the law enforcement officers that
       reversible error has been committed is entitled to great weight, but our
       judicial obligations compel us to examine independently the errors
       confessed. . . . Furthermore, our judgments are precedents, and the proper
       administration of the criminal law cannot be left merely to the stipulation of
       parties. . . .

See also Orloff v. Willoughby, 345 U.S. 83, 88 (1953) (“This Court, of course, is not
bound to accept the Government’s concession that the courts below erred on a question of
law.”).


                                             18
       Indeed, a recent decision of the Kansas Supreme Court confirms our

understanding. In State v. LaGrange, that court noted the term ‘such felony’ “identifies

both the listed Kansas felonies and the substantially similar out-of-state felonies.” ---

P.3d ---, 2012 WL 2498869, at *5 (Kan. June 29, 2012). The Kansas Court went on to

state that the clear intent of the Kansas legislature is that the ten-year ban “commences

either on the date of conviction of the applicable felony or on the date of release from

prison for the applicable felony,” whichever is more favorable to the government. Id.

(emphasis added). Thus, the ban started once Mr. Hoyle served his entire state sentence

from which the firearms ban resulted in the first place. The concurrent federal sentence

was on a federal drug charge — a charge which the federal government (in this § 922(g)

prosecution) does not argue is “substantially similar” to any crimes listed in the portion of

the Kansas statute imposing a ten-year firearm ban — and thus has no bearing on the start

date of the firearms ban resulting from the state conviction.

       We conclude that the district court erred in ruling that the firearms ban resulting

from Mr. Hoyle’s Kansas convictions would not begin to run until 2004. Instead, we

agree with the parties that the ban that resulted from the state convictions began to

operate in 1998, upon Hoyle’s release from state prison for both of his state felonies.5



       5
        Under Kan. Stat. Ann. § 21-4204(a)(3) (2010), Mr. Hoyle’s aggravated escape
conviction also resulted in a firearms ban. This ban, however, was only five years in

                                                                               (continued…)
                                             19
       2. Was Mr. Hoyle subject to a ten-year firearms ban, or a lifetime firearms ban?

       Turning back to the issue disputed by the parties, we must determine whether Mr.

Hoyle was subject to the ten-year firearms ban imposed by Kan. Stat. Ann. § 21-

4204(a)(4) (2010), or to the lifetime ban imposed by Kan. Stat. Ann. § 21-4204(a)(2)

(2010). Subsection (a)(4) imposes a ten-year ban on anyone who has been convicted of

any one of a variety of enumerated felonies, including Kan. Stat. Ann. § 21-3410 (2010),

which is titled “Aggravated assault.” But (a)(4)’s applicability is further limited: It only

applies where the felon “was found not to have been in possession of a firearm at the time

of the commission of the [predicate] offense.” Subsection (a)(2), on the other hand,

imposes a lifetime firearms ban on any person convicted for a “person felony” and who

“was found to have been in possession of a firearm at the time of the commission of the

[person felony] offense.”

       Mr. Hoyle does not dispute that his § 21-3410 conviction was a “person felony”

(being an assault on an individual), and thus satisfies the first precondition to a lifetime


(…continued)

duration. The aggravated assault ban, as we have said, was either a ten-year or lifetime
ban. Because Mr. Hoyle was released from prison at the same time for both of these
felonies, we only discuss the ban that resulted from the aggravated assault conviction,
which, under both parties’ interpretation of the relevant laws, expired after the ban
resulting from the aggravated escape conviction.


                                              20
ban. However, Mr. Hoyle stridently contends that his § 21-3410 conviction did not

satisfy the second precondition of a lifetime ban — having been found to be in possession

of a firearm when he committed the aggravated assault. Whether Mr. Hoyle was found to

be in such possession turns on statements made by state prosecutors at a plea hearing

eighteen years ago, in 1994.

      Mr. Hoyle was convicted under Kan. Stat. Ann. § 24-3410, which is titled

“Aggravated assault,” in 1994, after entering a nolo contendere plea. The charging

document in that case alleged that Mr. Hoyle and another individual “did unlawfully,

feloniously and intentionally place another . . . in reasonable apprehension of immediate

bodily harm, committed with a deadly weapon, in violation of Kan. Stat. Ann. § 21-

3410.” During the plea hearing on that charge, which took place in 1994, the state’s

attorney, when asked whether there was a plea agreement, stated:

      Yes, there is, Your Honor. In [this aggravated assault case] the defendant is
      charged on a four-count information. The court has previously indicated
      pursuant to plea negotiations in that case, the State will dismiss counts one,
      two and four. In return, the defendant will plead nolo contendere to count
      three. That count presently charges him with one count of aggravated
      assault with a gun. Pursuant to plea negotiations, the State will take out the
      gun.

Aplee. Brief, Attach. C, at 5 (Tr. of Plea Hr’g, Case Nos. 94 CR 73A, 94 CR 797,

Wyandotte County Dist. Ct., Oct. 25, 1994) (emphasis added).

      Given the prosecutor’s clear statement to the court, quoted above, we conclude

that Mr. Hoyle was not found in possession of a gun at the time he committed the

                                            21
aggravated assault. The government claims that a subsequent factual proffer at that same

plea hearing undermines the state prosecutor’s clear statement that “the State will take out

the gun.”6 Id. (emphasis added). We reject this argument because the state prosecutor’s

initial statement to the court was clear and unambiguous, and was based on a promise that

must be fulfilled to maintain the integrity of the plea.7 The gun, according to the state




       6
       At the plea hearing, the court later asked the state’s attorney what evidence
would be offered in support of the charge. The state’s attorney responded:

       Judge, in that case if we were to proceed to trial, our evidence would show
       that on January 11th, 1994 that [victim] Leo Vaughn was at his home . . .
       that around 6:30 that night, he had went outside to start his car. He started
       it and went back inside, that upon going back inside, he heard his car
       engine race. He came back outside and saw two black males in his car
       taking his car. Those two black males would be the defendant, Taurus
       Hoyle, and Tyree Cole, and that they went down the street. [Mr. Vaughn]
       gave chase. As he was chasing them down the street, Taurus Hoyle leaned
       out the passenger window and fired a shot at him placing [Mr. Vaughn] in
       immediate apprehension of bodily harm.

Aplee. Brief, Attach. C, at 8 (Tr. of Plea Hr’g, Case Nos. 94 CR 73A, 94 CR 797,
Wyandotte County Dist. Ct., Oct. 25, 1994). The court then asked Mr. Hoyle whether
those were the facts that he was not disputing, and Mr. Hoyle replied, “Yes.” Id. at 9.
       7
         “Where a plea is predicated in any significant degree on a promise or agreement,
such promise or agreement must be fulfilled to maintain the integrity of the plea.” United
States v. Greenwood, 812 F.2d 632, 637 (10th Cir. 1987) (quoting United States v.
Reardon, 787 F.2d 512, 516 (10th Cir. 1986)) (emphasis added).

       In accordance with this important principle that plea agreements must be honored
scrupulously, we decline to allow the prosecutor’s later statements to override the terms
of the plea deal, whereby the gun was taken out. Thus, the mix of facts here, taken

                                                                              (continued…)
                                             22
prosecutor’s statement, was not part of the equation. And the aggravated assault charge

at issue required the use of a “deadly weapon” — not specifically a gun or firearm.

Therefore, we conclude that Mr. Hoyle was not found in possession of a gun at the time

he committed the aggravated assault, and consequently was subject to a ten-year firearms

ban as a result of the conviction for that offense. As to the aggravated assault offense,

then, Mr. Hoyle’s civil rights were restored by operation of Kansas law in 2008 — in

other words, before he committed the § 922(g)(1) offense in 2010.

       Mr. Hoyle’s conviction for a federal drug offense in 1995 also had a separate

effect on his entitlement to possess firearms as a matter of Kansas law. Under Kan. Stat.

Ann. § 21-4204(a)(3) (2010), Mr. Hoyle’s 1995 federal conviction subjected him to a

five-year Kansas firearms ban, the clock on which began to run in 2004, when he was

released from federal prison. Thus, this five-year ban expired in 2009 — i.e. prior to

commission of Mr. Hoyle’s § 922(g)(1) offense in 2010.

       As a result, Mr. Hoyle had all of his civil rights restored by operation of Kansas

law in 2009 — in other words, before he committed the § 922(g)(1) offense — and the

two Kansas offenses counted by the district court as ACCA predicates should not have

been so counted. Therefore, Mr. Hoyle did not have the requisite three ACCA prior

(…continued)

correctly, did not include the gun, which, by the plea agreement, was taken out of the
aggravated assault charge.


                                             23
convictions, and he must be resentenced without applying either the statutory ACCA

provisions or the guidelines provisions implicated by ACCA status.8



                                   IV. CONCLUSION

       Mr. Hoyle’s conviction is AFFIRMED. His sentence, however, is VACATED,

and this case is REMANDED to the trial court for resentencing consistent with this

opinion.




       8
         In light of our holding that neither of Mr. Hoyle’s state law convictions qualified
as an ACCA predicate conviction, we do not address either of Mr. Hoyle’s two
alternative arguments.


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