Buchmeier v. U.S.

• Decision Date: 10 September 2009
• Docket Number: No. 06-2958.,06-2958.
• Citation: 581 F.3d 561
• Parties: Shane BUCHMEIER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

581 F.3d 561

Shane BUCHMEIER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 06-2958.

United States Court of Appeals, Seventh Circuit.

Argued March 5, 2008.

Decided September 10, 2009.

Erik W.A. Snapp, Attorney (submitted), Winston & Strawn, Chicago, IL, for Petitioner-Appellant.

Madeleine S. Murphy, Attorney, Office of the United States Attorney, Chicago, IL, for Respondent-Appellee.

Before EASTERBROOK, Chief Judge, and POSNER, MANION, KANNE, ROVNER, WOOD, EVANS, WILLIAMS, SYKES, and TINDER, Circuit Judges.^†

EASTERBROOK, Chief Judge.

Shane Buchmeier was sentenced as an armed career criminal following four firearms convictions: two for possessing firearms despite a prior felony conviction, 18 U.S.C. § 922(g)(1), and two for receiving stolen firearms, § 922(j). His sentence of 188 months' imprisonment is within the 480-month maximum for these crimes. (Each conviction carries a maximum sentence of 10 years, § 924(a)(2)). But the armed career criminal enhancement set a floor of 180 months, § 924(e), and without it Buchmeier might have received a sentence in the Guideline range of 121 to 151 months that would have applied, but for the enhancement.

We affirmed Buchmeier's conviction and sentence on direct appeal. 255 F.3d 415 (7th Cir.2001). He then filed a collateral attack under 28 U.S.C. § 2255, contending that his lawyer had furnished ineffective assistance by failing to contest the recidivist enhancement. The prosecutor might have replied that solitary errors in the course of an otherwise vigorous and competent defense rarely violate the sixth amendment. See Strickland v. Washington, 466 U.S. 668, 695-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Williams v. Lemmon, 557 F.3d 534 (7th Cir.2009). Instead of making such a riposte, however, the prosecutor defended the § 924(e) enhancement on the merits. The United States thus has forfeited, if it has not waived, any contention that the overall performance of Buchmeier's lawyer was adequate; it has effectively consented to treating this collateral attack as a rerun of the direct appeal. Given the parties' litigating positions, we proceed to examine the propriety of the recidivist enhancement, without asking whether counsel furnished ineffective assistance. That issue has never been contested, and we cannot tell how things would have come out on a complete analysis under Strickland.

Section 924(e) requires a lengthy sentence for anyone who violates § 922(g) after three convictions for violent felonies or serious drug crimes. Section 924(e)(2)(B) lists the offenses that count as violent felonies. Each must be "punishable by imprisonment for a term exceeding one year" and meet other conditions. One qualifying offense is burglary, and Buchmeier has eight of these on his rap sheet. He now maintains that they do not count because of 18 U.S.C. § 921(a)(20):

The term "crime punishable by imprisonment for a term exceeding one year" does not include—

(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or

(B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.

What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be 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 fire-arms.

The hanging paragraph's first sentence tells us that state law governs "[w]hat constitutes a conviction". This countermands Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983), which had held that federal law defines "conviction" and that a diversionary disposition in state court is one. The first sentence also means that a pardon or automatic expungement under state law is effective for federal purposes. The hanging paragraph's second sentence is a proviso to the first. It tells us that, no matter what state law provides, a person who has received a "pardon, expungement, or restoration of civil rights" is not treated as convicted for federal purposes "unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms."

Buchmeier relies on the hanging paragraph's second sentence. When his state terms expired, and he was released from all supervision, he received from the Illinois Department of Corrections a notice (applicable to all eight burglaries) reading:

We have been advised by the field services office of the Stateville Correctional Center that you have completed the maximum of your sentence as of 02/09/1994. On this date, your obligation to the department ceases.

We are pleased to inform you of the restoration of your right to vote and to hold offices created under the constitution of the state of Illinois. You also have the right to restoration of licenses granted to you under the authority of the state of Illinois if such license was revoked solely as a result of your conviction, unless the licensing authority determines that such restoration would not be in the public interest.

Buchmeier contends that this notice is a "restoration of civil rights" and that, because it does not provide that he "may not ship, transport, possess, or receive firearms", none of the eight burglary convictions meets the definition of a "crime punishable by imprisonment for a term exceeding one year". With these eight convictions erased, Buchmeier no longer has three convictions for violent felonies and cannot properly be sentenced under § 924(e) as an armed career criminal.

Section 921(a)(20) does not say which civil rights, if restored, cause a state conviction not to count. We concluded in United States v. Williams, 128 F.3d 1128, 1134 (7th Cir.1997), that three civil rights matter: the rights to vote, to hold office, and to serve on juries. If these are restored, then a conviction does not carry federal fire-arms disabilities or support a § 924(e) enhancement "unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms." The document that Buchmeier received mentions only two of the three civil rights; it is silent about jury service. As this civil right has not been restored (at least, Buchmeier was not told about its restoration), the district court held that the eight burglary convictions still count for federal purposes. In reaching this conclusion, it relied entirely on United States v. Gillaum, 372 F.3d 848, 859-61 (7th Cir.2004), which holds that, when a pardon, expungement, or other restoration of rights omits one of the "big three" civil rights, there is no need for a firearms reservation. In Gillaum the notice said that "rights to vote and administer estates are regained." Nothing there about the right to hold public office or to serve on juries, so Gillaum's convictions still counted for federal recidivist enhancements.

It does not follow from Gillaum, however, that a notice counts as a "pardon, expungement, or restoration of civil rights" only if it mentions all three civil rights. Pardons often are unconditional ("full, free, and absolute"); they don't mention any particular rights but come within § 921(a)(20) because they restore all civil rights, unless they contain a reservation— and the second sentence of the hanging paragraph says that a firearms reservation must be mentioned expressly. More to the point, there is no need to notify a defendant that a given civil right has been restored, unless it was first taken away. A felony conviction in Illinois suspends a person's right to vote and hold many public offices until the sentence has expired; then these rights are restored automatically. 730 ILCS 5/5-5-5(b), (c). The right to serve on juries, by contrast, is not suspended—though as a practical matter it can't be exercised while a person is in prison. The notice Buchmeier received did not mention his right to serve on juries, because he had never lost it. This means, Buchmeier observes, that when his sentence ended he could again exercise all three of the civil rights commonly lost with a felony conviction. And, as the notice informing him of the rights' restoration did not mention a firearms disability, the eight burglary convictions are removed from the federal calculus.

Logan v. United States, 552 U.S. 23, 128 S.Ct. 475, 169 L.Ed.2d 432 (2007), holds that, if a person never loses any of the "big three" civil rights, then they cannot be "restored" for the purpose of the hanging paragraph's second sentence. To restore means to give back. Thus a person who never lost civil rights cannot insist that he be treated the same as a person who lost them, had them restored, and did not receive an "express" warning that the right to possess firearms had not been restored. But Buchmeier did lose civil rights; they could be, and were, "restored" to him; and the document announcing this restoration could have contained (but lacked) a warning that he must not possess firearms. Illinois law forbids felons to possess firearms, unless the Director of the State Police grants a dispensation. 720 ILCS 5/24-1.1(a). Buchmeier's convictions have not been set aside, so this rule applies, though it was not mentioned in the notice telling Buchmeier that his civil rights had been restored.

Questioning by the panel at oral argument implied to counsel that neither Logan nor Gillaum supports Buchmeier's § 924(e) enhancement. And because, under this circuit's decisions, the "ex...