U.S. v. Philp, 05-5308.

• Decision Date: 22 August 2006
• Docket Number: No. 05-5308.,05-5308.
• Citation: 460 F.3d 729
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas Vernon PHILP, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

460 F.3d 729

UNITED STATES of America, Plaintiff-Appellee, v. Thomas Vernon PHILP, Defendant-Appellant.

No. 05-5308.

United States Court of Appeals, Sixth Circuit.

Argued: January 25, 2006.

Decided and Filed: August 22, 2006.

ARGUED: Samuel J. Harris, Cookeville, Tennessee, for Appellant. Philip H. Wehby, Assistant United States Attorney, Nashville, Tennessee, for Appellee. ON BRIEF: Samuel J. Harris, Cookeville, Tennessee, for Appellant. Philip H. Wehby, Assistant United States Attorney, Nashville, Tennessee, for Appellee.

Before: SILER, SUTTON, and COOK, Circuit Judges.

OPINION

SILER, Circuit Judge.

Defendant Thomas Philp appeals the denial of his motion to dismiss count one of his indictment charging him with being a felon-in-possession of a firearm in violation of 18 U.S.C. §§ 924 and 922(g)(1). Philp asserts that his breaking and entering of an unoccupied dwelling conviction from 30 years ago cannot support the felon-in-possession charge because, under Michigan law, his "civil rights were restored" by operation of law and therefore his breaking and entering conviction cannot be considered a "conviction." Thus, the question we must address is whether "breaking and entering of an unoccupied building" is a "specified felony" under MICH. COMP. LAWS ANN. § 750.224(f). Conviction of a specified felony requires that a person apply for the right to possess firearms, which Philp concedes he did not do. Because the Michigan Court of Appeals affirmatively decided this question in Tuggle v. Michigan Department of State Police, 269 Mich. App. 657, 712 N.W.2d 750 (2005),¹ we AFFIRM his conviction and the district court's denial of Philp's motion to dismiss.

BACKGROUND

Philp was convicted in 1970 of breaking and entering of an unoccupied building in Michigan. He argues his civil rights were restored by virtue of the MICH. COMP. LAWS ANN. § 7540.224f, which provides that a convicted felon may possess a firearm upon the expiration of 3 years after completion of probation or parole. The relevant portions of MICH. COMP. LAWS ANN. § 7540.224f provide:

(1) Except as provided in subsection (2), a person convicted of a felony shall not possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm in this state until the expiration of 3 years after all of the following circumstances exist:

(a) The person has paid all fines imposed for the violation.

(b) The person has served all terms of imprisonment imposed for the violation.

(c) The person has successfully completed all conditions of probation or parole imposed for the violation.

(2) A person convicted of a specified felony shall not possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm in this state until all of the following circumstances exist:

(a) The expiration of 5 years after all of the following circumstances exist:

(i) The person has paid all fines imposed for the violation.

(ii) The person has served all terms of imprisonment imposed for the violation.

(iii) The person has successfully completed all conditions of probation or parole imposed for the violation.

(b) The person's right to possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm has been restored pursuant to section 4 of Act No. 372 of the Public Acts of 1927, being section 28.424 of the Michigan Compiled Laws.

* * *

(6) As used in subsection (2), "specified felony" means a felony in which 1 or more of the following circumstances exist:

(i) An element of that felony is the use, attempted use, or threatened use of physical force against the person or property of another, or that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

* * * * *

(v) The felony is burglary of an occupied dwelling or breaking and entering an occupied dwelling, or arson.

The Government argues that Philp's felony was a "specified felony" and that those convicted of the "specified felonies" must apply to have their rights restored to a Concealed Weapon Licensing Board in the county of their residence. See MICH. COMP. LAWS ANN. § 28.424. Philp admits that he did not apply and concedes that he loses if breaking and entering of an unoccupied dwelling is a specified felony.

The district court ruled that Philp's conviction of breaking and entering includes the element of "breaking," Michigan law holds that the "breaking" element is satisfied by evidence of "slight force," and, thus, his felony meets the criteria for a "specified felony." It noted Philp's argument that "slight force" does not equate to "physical force" as used in the "specified felony" definition but rejected it on the grounds that "slight force certainly requires use of physical force," which is "physical force" against the person or property of another contained in the "specified felony" definition. The district court concluded that Philp committed a "specified felony," which required him to have applied for restoration of his firearm rights, which he admittedly did not do. Thus, it denied his motion to dismiss.

ANALYSIS

We review de novo a district court's denial of a motion to dismiss an indictment on legal grounds. United States v. Crayton, 357 F.3d 560, 564 (6th Cir.2004) (citations omitted). We apply state law as decided by the Michigan Supreme Court. When an issue is yet to be decided by the Michigan Supreme Court, we look to "relevant data," including state appellate decisions. See Kingsley Assocs., Inc. v. Moll PlastiCrafters, Inc., 65 F.3d 498, 507 (6th Cir.1995). "Relevant data include decisions of the state appellate courts, and those decisions should not be disregarded unless we are presented with persuasive data that the Michigan Supreme Court would decide otherwise." Id. at 507.

We are aware of only two persuasive cases directly addressing what constitutes a "specified felony" under Michigan law. The Eleventh Circuit in United States v. Tait, 202 F.3d 1320, 1325 (11th Cir.2000) (attempted larceny from a motor vehicle is not a specified felony), and the Michigan Court of Appeals in Tuggle v. Dept. of State Police, 269 Mich.App. 657, 712 N.W.2d 750, 756 (2005) (breaking and entering of unoccupied dwelling is a specified felony), reach irreconcilable results.

We will accept the holding of a state intermediate appellate court with respect to state law unless we determine the highest court of the state would decide otherwise. See Hicks v. Feiock, 485 U.S. 624, 630 n. 3, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988). Without demonstrating that the Michigan Supreme Court would decide that breaking and entering of an unoccupied dwelling is not a specified felony, we are "not at liberty to depart from the state appellate court's resolution" of this issue of state law. Id. at 629. There is no evidence that the Michigan Supreme Court would decide contrary to Tuggle. "In order to determine the Michigan law, we thus turn to the decisions of the Michigan intermediate courts, which are binding authority in federal courts in the absence of any Michigan Supreme Court precedent." Hampton v. United States, 191 F.3d 695, 701-02 (6th Cir.1999) (citations omitted).

While this appeal was pending the Michigan Court of Appeals decided Tuggle, which categorized attempted breaking and...