                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-5269


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JEFFREY ALLEN BRADY,

                Defendant – Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.       Thomas David
Schroeder, District Judge. (1:09-cr-00368-TDS-1)


Submitted:   June 21, 2011                 Decided:   July 13, 2011


Before DUNCAN, DAVIS, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr.,
Assistant Federal Public Defender, Greensboro, North Carolina,
Elizabeth A. Flagg, Research & Writing Attorney, Winston-Salem,
North Carolina, for Appellant.      Ripley Rand, United States
Attorney, Michael F. Joseph, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Jeffrey     Allen     Brady       pled    guilty       without    a      plea

agreement to one count of possession of a firearm by a convicted

felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2006).

The district court concluded that Brady had at least three prior

“violent   felony”      or   “serious     drug     offense”       convictions     (“the

1980s convictions”) * and that Brady was thus an armed career

criminal under the Armed Career Criminal Act (“ACCA”), see 18

U.S.C. § 924(e), and U.S. Sentencing Guidelines Manual (“USSG”)

§ 4B1.4    (2009).       The    court    sentenced        Brady    to   180   months’

imprisonment,     the    statutory      minimum      sentence      required     by    the

ACCA.     Brady challenges this sentence on appeal, arguing that

the district court erred in sentencing him as an armed career

criminal because the 1980s convictions do not qualify as ACCA

predicates.      Brady also argues that the district court committed

plain    error   in   sentencing        him   as     an   armed    career     criminal

because the indictment did not charge a violation of the ACCA

and he did not admit to those facts necessary to justify an ACCA




     *
       Specifically, Brady had the following prior convictions at
the time of his arrest in 2008: (1) a January 1984 conviction
for   selling   and  delivering   methylenedioxyamphetamine;  (2)
January 1984 convictions for selling and delivering LSD; and (3)
an August 1986 conviction for assault with a deadly weapon
inflicting serious injury.



                                          2
sentence.        We disagree, and, for the reasons that follow, we

affirm.



                                              I.

               Section      4B1.4    of    the       Sentencing       Guidelines     provides

for the imposition of an enhanced sentence on any person who is

an armed career criminal, as defined by 18 U.S.C. § 924(e)(1).

USSG § 4B1.4(a) & cmt. n.1.                  Section 924(e)(1) of Title 18 is

applicable to any person who violates 18 U.S.C. § 922(g) and has

three     or    more     previous         “violent         felony”      or    “serious     drug

offense”       convictions.           As     this          court     has     explained,    such

predicate      convictions          must    be       “of    the     type     referred     to   in

[18 U.S.C.] § 922(g)(1).”                 United States v. Clark, 993 F.2d 402,

403 (4th Cir. 1993).            Section 922(g)(1) of Title 18 applies to

convictions for crimes “punishable by imprisonment for a term

exceeding      one     year.”        However,         as     this    court     recognized      in

United States v. O’Neal, 180 F.3d 115, 119 (4th Cir. 1999),

there is “an important exception.”                         Section 921(a)(20) of Title

18   excludes        from    qualification            as     a      crime    “punishable       by

imprisonment for a term exceeding one year”:

     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 considered 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.

                                                 3
18 U.S.C. § 921(a)(20)(2006).

              In   determining         whether       state    law     provides   that   a

defendant’s civil rights have been restored, we “look to the

whole of state law.”             Clark, 993 F.2d at 403 (internal quotation

marks omitted).           “This inquiry requires an analysis of whether

and to what extent [North Carolina] restores the civil rights of

ex-felons.”        United States v. Essick, 935 F.2d 28, 30 (4th Cir.

1991) (internal quotation marks omitted).

              North Carolina law restores to convicted felons some

civil   rights      upon    release     from        imprisonment.       See    N.C.   Gen.

Stat. § 13-1(1) (2009).                Brady was released from prison after

serving imprisonment terms for the 1980s convictions on March

24,   1990.        Upon    his    release,         Brady   regained    his    “rights   of

citizenship,” including his rights to vote, hold office, and

serve   on    a    jury.         See    N.C.       Gen.    Stat.    § 13-1(1);    United

States v. McLean, 904 F.2d 216, 217 n.1 (4th Cir. 1990).

              Brady, however, did not immediately regain the right

to possess a firearm at the time of his release.                         At that time,

North Carolina’s Felony Firearms Act (“NCFFA”), N.C. Gen. Stat.

§ 14-415.1(a), provided that convicted felons could possess long

guns anywhere and firearms in their home or lawful place of

business and regained the right to possess all firearms five

years after release from prison.                     See O’Neal, 180 F.3d at 120-


                                               4
21.     Effective       December       1,   1995,      North     Carolina        amended    the

NCFFA to replace the five-year ban with a permanent ban on a

convicted felon’s right to possess certain firearms; the 1995

amendment, however, did not alter the provision permitting a

convicted felon to possess a long gun or a firearm in his home

or    lawful    place    of     business.          See    United    States       v.    Farrow,

364 F.3d 551, 554 (4th Cir. 2004).                       Effective December 1, 2004,

North Carolina again amended the NCFFA, this time prohibiting

convicted felons from possessing any and all firearms.                                      N.C.

Gen. Stat. § 14-415.1(a) (2004).

               In     Brady’s      view,       the       district        court     erred      in

sentencing him as an armed career criminal because, five years

after he was discharged from the custody of the North Carolina

Department of Correction, his civil rights were restored as to

each of the 1980s convictions and, as a result, such convictions

do not qualify as ACCA predicates.                       Although acknowledging that

North Carolina amended the NCFFA in 2004 to prohibit convicted

felons from possessing firearms under any circumstances, Brady

contends       that    the    2004    amendment        cannot     deprive        him   of   his

fundamental         right     to     possess       a   firearm      in     his    residence,

see McDonald v. City of Chicago, 130 S. Ct. 3020, 3050 (2010);

District of Columbia v. Heller, 554 U.S. 570, 635-36 (2008),

without violating the Ex Post Facto Clause of the Constitution.



                                               5
                                             A.

               Brady correctly notes that, by operation of law, his

right to possess any and all firearms was fully restored to him

under North Carolina law on March 24, 1995, five years after his

release from prison after he completed the prison sentences for

the 1980s convictions.               See O’Neal, 180 F.3d at 121 (applying

the law in effect at the time of the defendant’s discharge from

prison    to    determine      the    right       of   the    defendant       to    possess

firearms).            However,       the     2004      amendment         to   the     NCFFA

retroactively stripped Brady of this previously restored right.

See   N.C.     Gen.    Stat.     §   14-415.1(a)        (2004);     Britt      v.    State,

649 S.E.2d 402, 406 (N.C. Ct. App. 2007), rev’d on other grounds

by Britt v. State, 681 S.E.2d 320, 323 (N.C. 2009).

               Whether the 2004 amendment to the NCFFA is ex post

facto as applied to Brady is a question of law we review de

novo.     Farrow, 364 F.3d at 554.                The Ex Post Facto Clause of the

Constitution       prohibits         laws    that      “retroactively         alter        the

definition of crimes or increase the punishment for criminal

acts.”       Collins v. Youngblood, 497 U.S. 37, 43 (1990).                                The

Supreme    Court      has   defined        the    latter     part   of    this      rule   as

prohibiting laws that retroactively “increase[] the penalty by

which a crime is punishable.”                    Ca. Dep’t of Corr. v. Morales,

514 U.S. 499, 506 n.3 (1995).                     In O’Neal, this court observed

that:

                                             6
     “Punishment” and “penalty” are constitutional terms of
     art, defined in contra distinction to laws that are
     “civil”   or   involve   “regulation  of   a   present
     situation.”   While laws that retroactively increase
     “punishment” or impose a “penalty” violate the Ex Post
     Facto Clause, retroactive civil or regulatory ones do
     not.

O’Neal, 180 F.3d at 121-22 (internal citations omitted).

            In determining whether a law is punitive or regulatory

in nature, courts apply a two-part test.                   A court should first

ask “whether the legislature's intent, as discerned from the

structure   and    design    of   the    statute     along   with    any   declared

legislative      intent,    was   to   impose    a   punishment     or    merely   to

enact a civil or regulatory law.”               Id. at 122.        Second, a court

should determine whether the effect of the law is “so punitive

in fact that the law may not legitimately be viewed as civil in

nature.”    Id. (internal quotation marks omitted).                   The analysis

under this second part of the test “focuses upon whether the

sanction or disability that the law imposes may rationally be

connected to the legislature’s non-punitive intent, or rather

appears    excessive   in     light     of    that   intent.”       Id.    (internal

quotation marks omitted).

            In    O’Neal,    this      court    rejected     the    argument   that

retroactive application of the former five-year ban on handgun

possession codified in the version of the NCFFA in effect in

1983 was punitive and therefore unconstitutional under the Ex

Post Facto Clause.          With regard to the first prong of the ex

                                          7
post facto analysis, the court relied on several North Carolina

decisions rejecting ex post facto challenges to earlier versions

of section 14-415.1.              O’Neal, 180 F.3d at 123.               In view of these

decisions, this court concluded that “North Carolina has made

clear that its intent was to enact a civil disability to protect

the public from those, felons, whose possession of guns there

was the most reason to fear, not to impose any punishment or

penalty on felons.”            Id.       In addressing the second part of the

analysis, the court concluded that the effect of the five-year

ban    was   not    “so    punitive       in     fact”      that   the       law   should   be

considered punitive in nature and that the probationary period

provided an additional civil disability in an effort to protect

the public.        Id. at 124.

              In    Farrow,       this    court     rejected       a    similar     argument

challenging as ex post facto the retroactive application of the

1995 amendment to the NCFFA.                   In finding no violation of the Ex

Post    Facto      Clause,    this       court     cited     O’Neal      as    controlling.

Farrow,      364    F.3d     at    555.        Additionally,           the    Farrow   court

concluded     that    the     indefinite         ban   in    the   1995       amendment     was

“rationally        connected       to    the    state’s      legitimate        interest      in

protecting the public.”             Id.

              With respect to the 2004 amendment, recent decisions

from the Court of Appeals of North Carolina (“CANC”) and the

Supreme Court of North Carolina (“SCNC”) make clear that the

                                               8
intent of the North Carolina legislature was to enact a civil

disability to protect the public and that this disability is

rationally related to that non-punitive intent.

              In 2007, the CANC rejected the claim that retroactive

application     of    the    2004    amendment            to   the     NCFFA    was    ex    post

facto.     Britt, 649 S.E.2d at 406-07 (“Britt I”).                             Although the

SCNC later reversed Britt I, it did so on alternate grounds,

leaving intact the ex post facto analysis performed by the CANC.

Britt, 681 S.E.2d at 322-23 (“Britt II”).                              In 2010, the SCNC

explicitly rejected a claim that the 2004 amendment to the NCFFA

was an unconstitutional ex post facto law.                             State v. Whitaker,

700   S.E.2d    215,       220    (N.C.     2010).             Specifically,      the       court

concluded that the ban was not punitive in nature since its

intent was to protect the public from future violent actions of

those considered dangerous or who had demonstrated a heightened

disregard for the law.             Id. at 218.            The SCNC noted support for

its   conclusion      in    the    Heller       decision,        in    which     the   Supreme

Court    of   the    United       States    described           bans    on     possession     of

firearms by convicted felons as regulatory action.                               Id. at 218-

19 (citing Heller, 554 U.S. at 627 & n.26 (characterizing long-

standing prohibitions such as the ban on possession of firearms

by    convicted       felons       as      “presumptively              lawful     regulatory

measures”)).         The SCNC also concluded that the 2004 amendment

was     rationally     connected           to       the    non-punitive          purpose      of

                                                9
protecting public safety, id. at 219, and was not excessive in

light of that purpose.         Id.

            Taken together, then, O’Neal, Farrow, Britt I, Britt

II, and Whitaker uphold as constitutional the proposition that

the NCFFA, as amended in 2004, is not an unconstitutional ex

post facto law.          The law may therefore be applied to Brady to

retroactively      strip    him    of    his     previously       restored    right   to

possess firearms without violating the Ex Post Facto Clause.



                                            B.

            Brady has not suggested in his appellate briefs that

such a stripping of a restored right to possess firearms would

not effectively revive a previously negated predicate conviction

for purposes of §§ 922(g)(1) and 924(e), and we conclude that

the 1980s convictions were available as predicate convictions

for purposes of §§ 922(g)(1) and 924(e).                      See Melvin v. United

States,   78     F.3d   327,   330      (7th     Cir.    1996).      Accordingly,     we

reject    Brady’s       argument     that      the      district     court    erred   in

sentencing him as an armed career criminal under USSG § 4B1.4

and 18 U.S.C. § 924(e).



                                          II.

            Brady also argues that the district court committed

plain    error    in    sentencing       him     as     an   armed   career    criminal

                                            10
because the indictment did not charge a violation of the ACCA

and he did not admit to those facts necessary to justify an ACCA

sentence.       As Brady correctly acknowledges, however, this claim

is    foreclosed      by   controlling        Circuit         precedent.         See United

States    v.    Thompson,       421   F.3d    278,       284     n.4    (4th    Cir.   2005)

(holding that an indictment need not reference or list the prior

convictions used to enhance a sentence); United States v. Cheek,

415    F.3d    349,     352-54    (4th   Cir.           2005)    (holding       that   prior

convictions      used      as   the   basis       for    an     armed   career     criminal

sentence need not be charged in the indictment or proven beyond

a reasonable doubt).



                                         III.

               Accordingly, we affirm the district court’s judgment.

We    dispense    with     oral   argument        because        the    facts    and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                                   AFFIRMED




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