
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1907                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 MICHAEL INDELICATO,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                      [Hon. Patti B. Saris, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge.                                        _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            James L. Sultan, by  Appointment of the Court, with whom Rankin  &            _______________                                          _________        Sultan was on briefs for appellant.        ______            Paula J.  DeGiacomo, Assistant United  States Attorney, with  whom            ___________________        Donald K. Stern, United  States Attorney, was on brief  for the United        _______________        States.                                 ____________________                                   October 15, 1996                                 ____________________                 BOUDIN, Circuit  Judge.   In the district  court Michael                         ______________            Indelicato pled  guilty to various charges  of possession and            distribution  of cocaine,  conspiracy to  distribute cocaine,            wire  fraud, and conspiracy to defraud the United States.  18            U.S.C.    371,  1343; 21 U.S.C.     841(a)(1), 846, 853.   He            was tried on four related charges of possessing  firearms and            ammunition,  having  previously  been convicted  of  a  crime            punishable by  more than  one year  in prison.   18 U.S.C.               922(g)(1).  In a  jury-waived trial on stipulated facts,  the            district  court found  Indelicato guilty  on those  counts as            well.  United States v. Indelicato, 887 F. Supp. 23 (D. Mass.                   _____________    __________            1995).  Indelicato now appeals from these firearms possession            convictions and from his sentence on the drug counts.                                          I.                 The background  facts are  easily summarized.   In 1993,            Indelicato  pled  guilty  in  Massachusetts  state  court  to            assault  and battery with  a knife  and carrying  a dangerous            weapon (the knife).  Mass. Gen. Laws ch. 265,   13A; ch. 269,              10(b).  The  state court ultimately sentenced him to a one-            year  suspended sentence  and  $7,500  in restitution,  which            Indelicato paid.  Both  offenses are misdemeanors under state            law but punishable by a maximum  of two and one-half years in            prison.                 On May 7, 1994, federal agents arrested Indelicato.  The            agents searched his home and place of business and found four                                         -2-                                         -2-            firearms (including an Uzi semiautomatic weapon) and numerous            forms   of  ammunition.     The  ensuing  indictment  charged            Indelicato, among  other offenses, with  violating 18  U.S.C.              922(g)(1), which makes it unlawful for any person "who  has            been  convicted  in  any  court of,  a  crime  punishable  by            imprisonment for a  term exceeding one year . .  . to ship or            transport in interstate or foreign commerce, or possess in or            affecting commerce,  any  firearm or  ammunition  . .  .  ."1            Indelicato   stipulated   that   the    interstate   commerce            requirement was satisfied.                 However, 18  U.S.C.     921(a)(20)  excludes  from  this            category "[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."   At trial, Indelicato argued  that this exclusion            applied  to him  because  Massachusetts never  took away  his            civil rights and because  he suffered no restrictions  on his            state firearms privileges.                 The district court rejected Indelicato's argument, quite            properly relying upon United States v. Ramos, 961 F.2d  1003,                                  _____________    _____                                            ____________________                 118 U.S.C.   921(a)(20)(B)  excludes from this  category            persons convicted of state  misdemeanors punishable by a term            of  imprisonment of  two years  or less.   Because  his state            crimes carried a larger  maximum sentence, Indelicato did not            fall within this exception.                                         -3-                                         -3-            1007-10 (1st Cir.), cert. denied, 506  U.S. 934 (1992), which                                ____________            held  that   rights  never   taken  away  cannot   have  been            "restored."     Long  after  the   district  court  sentenced            Indelicato,  this court  (in February  1996) sitting  en banc                                                                  _______            announced  its decision in United States v. Caron, 77 F.3d 1,                                       _____________    _____            5-6  (1st  Cir.) (en  banc), cert.  denied,  116 S.  Ct. 2569                              ________   _____________            (1996),  which  overruled  Ramos  on a  different  issue  and                                       _____            explicitly reserved judgment  on whether  civil rights  never            taken away could be "restored."                 At Indelicato's  sentencing in July  1995, the  district            court imposed concurrent terms  of 168 months imprisonment on            the  cocaine counts  (based primarily  on the  weight of  the            drugs), 120 months on the firearms possession counts, and  60            months on  the fraud counts,  as well as  supervised release,            fines, assessments and forfeitures.                                         II.                 Our  principal  concern  on  this  appeal  is  with  the            firearms  possession counts,  which present  an issue  of law            that we review de  novo.  As originally  enacted in 1968,  18                           ________            U.S.C.    922(g)(1)  made criminal  gun possession  by anyone            previously  convicted  of  a crime  (the  predicate  offense)            punishable  by more  than one year  of imprisonment,  but the            statute  allowed   an   exception  for   state   misdemeanors            punishable by two years or less of imprisonment.  18 U.S.C.              921(a)(20).  In 1983, the Supreme Court held that a predicate                                         -4-                                         -4-            offense under  section 922(g) is defined by  federal law, and            that state expunctions of state convictions did not avoid the            ban of section 922(g)(1).  Dickerson v. New Banner Institute,                                       _________    _____________________            Inc., 460 U.S. 103, 111-12, 115 (1983).            ____                 Congress  reacted  to  Dickerson  and  like  rulings  by                                        _________            enacting  in 1986  the Firearms  Owners' Protection  Act, 100            Stat.   449,  which   in  pertinent   part  amended   section            921(a)(20)'s  definition   of   predicate  offenses.      The            amendment, which remains in effect today, provides that state            law  defines what  constitutes  a predicate  "conviction" for            purposes  of section  922(g)(1) and  other provisions  of the            statute.    It  also  excludes  convictions  that  have  been            "expunged" or "set aside,"  or for which the person  has been            "pardoned" or "has had civil  rights restored."  Congress has            provided no definition of "civil rights" or "restored."                  The  main  issue for  us  is whether  the  "civil rights            restored"  provision in section 921(a)(20)  protects one who,            like  Indelicato, never  had his  civil rights taken  away at            all.  It is common ground that misdemeanants in Massachusetts            do  not lose the  rights that we and  most courts describe as            "civil rights" under  the statute:   the rights  to vote,  to            serve  on a jury, and to hold  public office.  Caron, 77 F.3d                                                           _____            at  2.  But the  government argues, based  on plain language,            that a defendant cannot have "restored" to him what the state            never took away.                                          -5-                                         -5-                 The  issue  is difficult  because  it  pits the  literal            language  of   the   statute  against   Congress'   perceived            rationale.    Clearly  the   ordinary  reading  of  the  word            "restored" supports the  government.  This  court so held  in            Ramos, 961 F.2d  at 1007-08, although over  a strong dissent,            _____            and the  Second  Circuit  followed  Ramos on  this  issue  in                                                _____            McGrath  v. United States, 60 F.3d 1005, 1007 (2d Cir. 1995),            _______     _____________            cert.  denied, 116  S. Ct.  929 (1996).   But  there  are two            _____________            different  reasons  why  we are  not  inclined  to  treat the            literal language  as precluding further  inquiry, quite apart            from the determination of the en banc court in Caron treating                                          _______          _____            the present issue as an open one in this circuit.  See Caron,                                                               ___ _____            77 F.3d at 5-6.2                 First,  a ready  explanation exists  why Congress  might            have used  the term  "restored" without intending  to exclude            persons like Indelicato.  The incidents that gave rise to the            amendment  (in  particular,  Dickerson),  and  what  Congress                                         _________            thought to  be the ordinary case, involved the deprivation of            civil  rights and  their  subsequent  restoration  (e.g.,  by                                                                ____            pardon).  Indeed,  there is no indication in  the legislative            history  that Congress gave any attention to the rare case in                                            ____________________                 2Although we  think that  Caron  frees us  to treat  the                                           _____            issue  as open despite Ramos, we have taken the precaution of                                   _____            circulating this opinion  in advance to all  of the circuit's            active judges.  This informal circulation does not preclude a            petition   for   rehearing   or   suggestion   of   en   banc                                                                _________            reconsideration. See Trailer Marine Transport Corp. v. Rivera                             ___ ______________________________    ______            Vazquez, 977 F.2d 1, 9 n.5 (1st Cir. 1992).            _______                                         -6-                                         -6-            which someone convicted of a serious crime would not lose one            or more of the three civil rights that have been used by most            courts as touchstones under this section.                 Second, as  explained later in this opinion,  it is hard            to  find any reason why  Congress would have  wished to adopt            the  distinction now  urged  by the  government.   In  United                                                                   ______            States  v. Cassidy, 899 F.2d  543, 549 n.13  (6th Cir. 1990),            ______     _______            the Sixth  Circuit went so far  as to say that  there was "no            rational basis"  for  distinguishing between  a criminal  who            never lost his civil  rights and one who had  them taken away            and  then  restored by  statute.   As  the Supreme  Court has            reminded us, "[l]ooking beyond the naked text for guidance is            perfectly  proper when  the result  it apparently  decrees is            difficult  to  fathom or  where  it  seems inconsistent  with            Congress' intention . . . ."  Public Citizen v. Department of                                          ______________    _____________            Justice, 491 U.S. 440, 455 (1989).            _______                 Where  language  is  not  conclusive,  courts  turn   to            legislative history and purpose.   Most broadly, it has  been            suggested   that   Congress'   main   purpose   in   enacting            section 921(a)(20) was to let the states decide who may carry            guns.   E.g., United States v. Bost, 87 F.3d 1333, 1334 (D.C.                    ____  _____________    ____            Cir. 1996);  Caron, 77  F.3d at  3; Ramos,  961 F.2d  at 1011                         _____                  _____            (Torruella, J.,  dissenting).   If so,  it might  follow that            Massachusetts--having declined to restrict the gun possession                                         -7-                                         -7-            rights  of misdemeanants  like  Indelicato--should  have  its            preference followed as a matter of course.                 This is  too sweeping  a contention.   Congress  in 1986            deliberately gave  the states much latitude  to determine who            would fall under the ban of  the federal statute; but it  did            not give the states carte blanche as  to the manner of making                                _____________            this  determination.   Rather, Congress  created a  structure            that  allows  the  state  to  make  this   decision  only  in            mechanically defined ways--such as by expungement  or setting            aside of a conviction, pardon or restoration of civil rights.            For instance, if  a state  does not restore  a felon's  civil            rights  but expressly  allows  him to  possess firearms,  the            felon  may still  be  prosecuted under  the federal  statute.            United States  v. Thomas,  991 F.2d  206, 214-15  (5th Cir.),            _____________     ______            cert. denied, 510 U.S. 1014 (1993).            ____________                 Although Congress did not  specify which civil rights it            had  in  mind,  the   plurality  view  among  the  circuits--            explicitly adopted  by this court in  Caron--is that Congress                                                  _____            had in mind  the core  cluster of "citizen"  rights that  are            typically lost by felons and restored by pardons, namely, the            right to vote, to serve on  a jury and to hold public office.            Caron, 77  F.3d at 2.   Indeed,  when the Senate  debated the            _____            amendment,  Senator  Sasser  noted  that  under  the  federal            statute, convicted  felons "lose most  civil rights--to vote,                                         -8-                                         -8-            hold  office, and  so  on .  . .  ."   131 Cong.  Rec. 18,182            (1985).                 To key the  federal statute to these  civil rights makes            sense only on  one assumption: that  Congress thought of  the            attribution of these rights as expressing "a state's judgment            that  a particular person or  class of persons  is, despite a            prior   conviction,   sufficiently  trustworthy   to  possess            firearms."  McGrath, 60  F.3d at 1009.  Accord  United States                        _______                     ______  _____________            v. Meeks, 987  F.2d 575,  578 (9th Cir.),  cert. denied,  510               _____                                   ____________            U.S. 919  (1993).  This "trustworthiness"  rationale is about            the  best that  we  or anyone  else  has managed  to  explain            Congress' approach.                 The tightest application of this rationale might suggest            that  Congress intended  to  allow  firearms possession  only            where a state has made an individualized decision  to restore                                      ______________            civil rights as, for  example, by an individual pardon.   But            the    statute   contains   no    explicit   requirement   of            individualized  action.   And this  court in  Caron, together                                                          _____            with  most  other circuits,  see 77  F.3d  at 2  n.1,  4, has                                         ___            rejected such a requirement of individualized action.                 If individualized action is not  required, it is hard to            see why Congress would wish to distinguish between one  whose            civil rights were never taken away (Indelicato) and one whose            civil rights  were mechanically taken  away and  mechanically            restored.  The  government has supplied  no such reason,  nor                                         -9-                                         -9-            has  any  court done  so.   The  distinction  could certainly            create an anomalous  result in various situations, such  as a            jurisdiction  that did  not deprive  a misdemeanant  of civil            rights but took away the rights of a felon and  then restored            them  by statute on the felon's completion of his prison term            and period of supervision.                 The  government's  best  argument, ad  hominem  but  not                                                    ___________            without force, is that Indelicato is a perfect example of the            kind of  previously convicted criminal who ought to be barred            from  possessing  a firearm.    Indelicato  had earlier  been            convicted of an assault with a  knife; he was engaged in drug            operations;  and  his  collection of  weapons  and ammunition            provided ample reason to  think that he was a  very dangerous            man.    Yet  because   Massachusetts  law  does  not  deprive            Indelicato  of his  civil  rights, Indelicato  can do  what a            federally convicted forger could not.                 But  the ad  hominem  argument is  somewhat  misleading.                          ___________            Indelicato is  already serving  a very long  federal sentence            for the drug offenses; and if civil rights were not deemed to            be  "restored" to him, neither would they be restored to some            other misdemeanant  in Massachusetts whose crime  might be so            pacific that  no one would  think that  it made any  sense to            deprive  him of the opportunity  to possess a  firearm.  See,                                                                     ____            e.g., Mass. Gen. Laws  ch. 56,   50 (alteration  of ballots).            ____            Congress  can fix the flaws in the present statute; we cannot                                         -10-                                         -10-            do so without  creating other  flaws and  the possibility  of            some new injustice.                 We recognize that our conclusion is contrary to two very            able  opinions--our own circuit's earlier two-to-one decision            on this issue in  Ramos and the Second Circuit's  decision in                              _____            McGrath, relying directly upon Ramos.  But Ramos' decision on            _______                        _____       _____            the point  at issue  drew some of  its force  from its  other            holding  that  Congress had  intended  restoration  to be  an            individualized decision--a  defensible position, but  one now            rejected by Caron and  most other circuits.  As  for McGrath,                        _____                                    _______            it  must be  set against  the contrary  views of  three other            circuits--the Fifth,  Sixth and Tenth.   Thomas, 991  F.2d at                                                     ______            212; Cassidy, 899 F.2d at 549 n.13; United States v. Hall, 20                 _______                        _____________    ____            F.3d 1066, 1069 (10th  Cir. 1994).  Ultimately, there  can be            no  perfect answer on a point that Congress did not consider.                 The issue before us  is unlikely to matter outside  of a            very few states.   Most states do take  away from every felon            at least one of  the three civil rights in question.  Vermont            (the  subject of McGrath)  appears to be one  of the very few                             _______            states  where a  felon does  not lose at  least one  of these            rights  upon  conviction; and  even  Vermont  preserves those            rights only  for a  felon who  is not  actually incarcerated,            McGrath, 60 F.3d at 1007 &  n.2.  And most circuits have held            _______            that all three  civil rights  must be restored  to avoid  the                                         -11-                                         -11-            federal  ban.3   Thus,  actual  restoration is  likely  to be            required in most cases.                 Conversely,  misdemeanants  are  normally  free  of  the            federal ban by virtue of a different exception in the federal            statute (see  note 1,  above) save  where the  misdemeanor is                     ___            punishable by more  than two years  in prison.   This too  is            unusual,  the  traditional  distinction  between  felony  and            misdemeanor being the potential for  a sentence of more  than            one year.  W. LaFave & A. Scott, 1 Substantive Criminal Law                                                 ________________________            1.6,  at 41 (1986).   This does not  preclude the possibility            that  when  Congress  understands  the  implications  of  its            statute  for  a problem  it did  not  foresee, it  may prefer            another result.                 We conclude, therefore, that Indelicato's  civil rights,            to  the extent  that they  were never  taken away,  should be            treated as  "restored" for  purposes of the  federal statute.            Here,  the   government   concedes  that   misdemeanants   in            Massachusetts do  not lose their civil rights.  Accord Ramos,                                                            ______ _____            961 F.2d at 1008.  Nor are we concerned with the exception to            the exception--the "expressly provides" proviso at the end of                                            ____________________                 3United States v. Horodner, 91 F.3d 1317, 1319 (9th Cir.                  _____________    ________            1996); United States v.  Flower, 29 F.3d 530, 536  (10th Cir.                   _____________     ______            1994), cert.  denied, 115 S.Ct. 939 (1995);  United States v.                   _____________                         _____________            Essig, 10 F.3d  968,, 976  (3d Cir. 1993);  United States  v.            _____                                       _____________            Hassan El, 5 F.3d 726, 734 (4th Cir. 1993), cert. denied, 114            _________                                   ____________            S. Ct. 1374 (1994); United States v. Driscoll, 970 F.2d 1472,                                _____________    ________            1478-79 (6th Cir. 1992), cert. denied, 506 U.S.  1083 (1993).                                     ____________            But see United  States v.  Dupaquier, 74 F.3d  615, 618  (5th            _______ ______________     _________            Cir. 1996).                                         -12-                                         -12-            section  921(a)(20)--for  the government  also  concedes that            Massachusetts  does not restrict  a misdemeanant's  rights to            "ship, transport, possess, or receive firearms."                 As  this  case illustrates  all  too  well, the  federal            statute,  as now drafted, gives  rise to a  host of difficult            and  obscure  issues  that   Congress  ought  to  resolve  by            reexamining  this statute.  It  is patent that  Congress as a            whole did not appreciate the great variety  and complexity of            state  provisions that would have  to be meshed  with the new            federal statute or the odd results that would follow.  One of            the senators  made  this  very  point,  but  only  after  the            amendment  had   passed.    132  Cong.   Rec.  28,488  (1986)            (statement of Sen. Durenberger).                 Yet, the  proliferated case law, the  conflicts, and the            utter  waste of time incurred by courts and litigants are all            secondary reasons for revision.  The main reason for Congress            to revisit  the statute is that  it does not do  the job that            Congress  expected it to do in reliably sorting out those who            present  a  special   danger--and  warrant  special   federal            restrictions  on possession  of firearms--from  those who  do            not.   Wherever  one  chooses  to  draw  the  line  (and  the            conflicting  policies  are  for  Congress  to  balance),  the            present line is too ragged and erratic to protect the public.                                         III.                                         -13-                                         -13-                 At sentencing in July  1995, Indelicato conceded that he            received about  35 kilograms of cocaine  from Amilcar Antonio            Imbert, as  supported by  evidence from  beeper records.   He            disputed Imbert's testimony that Imbert had delivered cocaine            to Indelicato  on many different occasions,  including a ten-            kilogram  transaction, and  argued that  the total  amount of            cocaine  that he purchased was  less than 50  kilograms.  The            district court concluded that the amount of drugs exceeded 50            kilograms,   and   sentenced   Indelicato   to   168   months            imprisonment  on   the  drug  counts,  the   minimum  of  the            applicable range for this quantity.                 On appeal,  Indelicato continues to dispute the quantity            of  cocaine attributed  to him.   But a review  of the record            indicates that  the government  presented enough  evidence to            support the district court's finding (which need be only by a            preponderance)  that  Indelicato   purchased  more  than   50            kilograms  of cocaine  from Imbert.   Indelicato  conceded 35            kilograms, although  the more accurate estimate  by the judge            of the sales recorded by beeper  records was 36.25 kilograms.            Imbert  also   testified  that  he  sold   ten  kilograms  to            Indelicato on  one occasion that  would not have  appeared in            the beeper records.                   The question, then, is whether  the district court had a            sufficient basis for finding an additional four kilograms not            represented  in the  beeper  records.   The court  concluded,                                         -14-                                         -14-            based  on Imbert's  testimony,  that Imbert  sold cocaine  to            Indelicato several  times each month for  at least one-and-a-            half months  prior to the  beeper records and  independent of            the  ten-kilogram  sale.   Imbert  also said  that  each sale            involved  whole kilograms  (or  more) or  large fractions  of            kilograms.   We think that these  multiple deliveries of such            quantities over the course of six weeks provides a sufficient            basis  for the conclusion  that at least  four more kilograms            should be attributed to Indelicato.                 Credibility   judgments  at  sentencing  are  the  trial            judge's province, United States v. Webster, 54 F.3d 1, 5 (1st                              _____________    _______            Cir. 1995),  and the  fact that  the district  judge rejected            some of Imbert's testimony as not credible does not mean that            she could not credit other aspects of his testimony.  Because            the district court's findings for sentencing were not clearly            erroneous, e.g., United  States v. Wihbey,  75 F.3d 761,  776                       ____  ______________    ______            (1st Cir. 1996), we affirm the drug quantity determination.                 The defendant's  convictions and sentence  for violating            18 U.S.C.   922(g)(1) are  vacated; his sentence on  the drug                                       _______            counts is affirmed; and the  case is remanded for entry of  a                      ________                   ________            modified judgment consistent with this opinion.                 It is so ordered.                 ________________                                         -15-                                         -15-
