U.S. v. Collins, 94-30300

• Decision Date: 24 July 1995
• Docket Number: No. 94-30300,94-30300
• Citation: 61 F.3d 1379
• Parties: 95 Cal. Daily Op. Serv. 5758, 95 Daily Journal D.A.R. 9809 UNITED STATES of America, Plaintiff-Appellee, v. Tony E. COLLINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1379

61 F.3d 1379

95 Cal. Daily Op. Serv. 5758, 95 Daily Journal

D.A.R. 9809

UNITED STATES of America, Plaintiff-Appellee, v. Tony E. COLLINS, Defendant-Appellant.

No. 94-30300.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 2, 1995.

Decided July 24, 1995.

Michael Donahoe, Asst. Federal Defender, Helena, MT, for defendant-appellant Collins.

Kris A. McLean, Asst. U.S. Atty., Helena, MT, for plaintiff-appellee U.S.

Appeal from the United States District Court for the District of Montana.

Before: SKOPIL, BOOCHEVER, and THOMPSON, Circuit Judges.

SKOPIL, Senior Circuit Judge:

Tony E. Collins was convicted by a jury of violating 18 U.S.C. Secs. 922(g)(1) and 922(g)(2), prohibiting felons and fugitives from possessing firearms. He was sentenced as an armed career criminal pursuant to 18 U.S.C. Sec. 924(e)(1). He contends on appeal that his prior felony convictions cannot serve as predicate offenses for sections 922(g)(1) and 924(e) because his civil rights, including the right to possess firearms, had been restored. We disagree that his right to possess firearms was ever restored. We also reject Collins' arguments regarding the search warrant and supporting affidavit, his proffered entrapment defense, the sufficiency of the evidence that he was a fugitive from justice, and acceptance of responsibility. We affirm.

FACTS AND PRIOR HISTORY

Collins was convicted of several felonies in Illinois in the late 1970's for which he was sentenced and released. He was arrested in Illinois in 1991, on misdemeanor theft charges. A bench warrant was issued when he failed to appear for trial. Collins thereafter moved to Montana. On June 15, 1993, he was stopped by a Montana sheriff after reports that he had fired a gun in a bar. Firearms were found in Collins' possession. The sheriff learned of the outstanding arrest warrant, but nevertheless released Collins and returned his firearms when it appeared that Illinois would not extradite Collins, and that the complaining witness would not sign a complaint.

The Bureau of Alcohol, Tobacco, and Firearms (ATF) was notified of the shooting incident. ATF learned of Collins' prior felony convictions, and confirmed his identity. On February 25, 1994, ATF was informed by a "concerned citizen" that on January 15, 1994, Collins had firearms in his trailer. The "concerned citizen," an acquaintance of Collins, provided Collins' address. ATF agents obtained a search warrant for Collins' trailer, where they found firearms and ammunition. Collins, however, was in Illinois on the day of the search. When Illinois police went to Collins' father's house to execute an arrest warrant, Collins initially concealed himself, but eventually submitted to arrest.

Collins was convicted by a jury of violating 18 U.S.C. Secs. 922(g)(1) and 922(g)(2). He appeals his conviction and sentence.

DISCUSSION

1. Restoration of Civil Rights

18 U.S.C. Sec. 922(g)(1) 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 ... possess in or affecting commerce, any firearm or ammunition." What constitutes a conviction of [a crime punishable by imprisonment for a term exceeding one year] shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction ... for which a person ... has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such ... restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

18 U.S.C. Sec. 921(a)(20) (emphasis added). Thus, if a felon's civil rights have been restored, "his felony conviction may not serve as a predicate conviction for a violation of section 922(g)(1), unless he has been informed by the state statute or other state action of any prohibition concerning firearms." United States v. Cardwell, 967 F.2d 1349, 1350 (9th Cir.1992).

Collins was sentenced pursuant to 18 U.S.C. Sec. 924(e)(1), which provides:

[i]n the case of a person who violates section 922(g) of this Title and has three previous convictions by any court referred to in section 922(g)(1) of this Title for a violent felony or serious drug offense, or both, committed on occasions different from one another, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years.

18 U.S.C. Sec. 924(e)(1). For section 924(e) to apply, the defendant's convictions must be of the type specified in section 922(g)(1), which, as stated above, refers to section 921(a)(20). Section 924(e) thus incorporates the definition of "crime punishable by imprisonment for a term exceeding one year," found in section 921(a)(20), and its exclusion of any conviction for which the defendant's civil rights have been restored.

Collins argues that his Illinois felony convictions are not "convictions" within the meaning of section 921(a)(20), because Montana restored his civil rights. The district court rejected that argument, ruling that Illinois law, rather than Montana law, was determinative, and that his civil rights had not been restored by Illinois law. We agree that Illinois law applies. "For purposes of Sec. 921(a)(20), only the convicting state jurisdiction can restore civil rights to a convicted felon and remove the disability of a predicate state offense." United States v. Eaton, 31 F.3d 789, 792 (9th Cir.1994); see also Beecham v. United States, --- U.S. ----, 114 S.Ct. 1669, 1671, 128 L.Ed.2d 383 (1994) (law of the convicting jurisdiction governs restoration of rights). Thus, we must consider the effect of Illinois law on Collins' prior felony convictions.

Our analysis is set forth in United States v. Dahms, 938 F.2d 131, 133 (9th Cir.1991). First, we must determine whether Collins' civil rights were substantially restored by Illinois law. Such restoration may occur by operation of law, and must be substantial, although it need not be complete. See United States v. Gomez, 911 F.2d 219, 221 (9th Cir.1990). When Collins was released from prison in 1979, his rights to vote and hold office, as well as all "license rights and privileges," were restored by operation of law. Ill.Rev.Stat. ch. 38, para. 1005-5-5 (1979). This statute "substantially restored" Collins' civil rights. See Gomez, 911 F.2d at 220-21 (civil rights "substantially restored" for purposes of section 921(a)(20) when rights to vote and serve on jury restored, despite remaining limitations on other rights); United States v. Erwin, 902 F.2d 510, 512 (7th Cir.) (p 1005-5-5 substantially restores civil rights), cert. denied, 498 U.S. 859, 111 S.Ct. 161, 112 L.Ed.2d 127 (1900).

Second, we must determine whether state law expressly prohibited Collins from possessing firearms, notwithstanding the substantial restoration of his civil rights. See Dahms, 938 F.2d at 133. We look to state law at the time restoration is granted, without regard to whether Collins' civil rights were later limited or expanded. See United States v. Varela, 993 F.2d 686, 690 & n. 2 (9th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 232, 126 L.Ed.2d 186 (1993); Cardwell, 967 F.2d at 1350-51. We conclude that Illinois law expressly prohibited Collins from possessing a firearm. See United States v. Gipson, 985 F.2d 412, 414 (8th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 81, 126 L.Ed.2d 50 (1993); Erwin, 902 F.2d at 512-513. Upon his release from prison, Collins was prohibited from possessing firearms for five years. Ill.Rev.Stat. ch. 38, para. 24-3.1(a)(3) (1979); see Erwin, 902 F.2d at 512-513. Before five years had elapsed, Collins was reincarcerated for subsequent crimes. Collins remained incarcerated in 1984, when Illinois law changed to prohibit all felons from possessing firearms at any time, in the absence of special permission from the Director of State Police. Ill.Rev.Stat. ch. 720, para. 5/24-1.1 (1995) (effective July 1, 1984).

Collins argues that his right to possess firearms was restored in 1984, notwithstanding his incarceration. In United States v. Clark, 993 F.2d 402, 404-405 (4th Cir.1993), the Fourth Circuit considered whether, for purposes of section 921(a)(20), a felon's right to possess firearms is restored when the felon never actually became eligible to possess firearms under the state law due to subsequent convictions. The court held that section 921(a)(20) requires "effective, not merely formal, restoration of rights to render a prior conviction unavailable for consideration under Sec. 924(e)." Id. at 405 (emphasis in original). We agree with the Fourth Circuit that it "would undermine the entire purpose of Sec. 924(e), designed to respond to recidivist conduct, to isolate each offense and project what would have happened in the absence of other offenses." Id. This reasoning applies with equal force to section 922(g)(1). Thus, we conclude that Collins' right to possess firearms has never been restored by Illinois law. Accordingly, his prior felony convictions were properly used as predicate offenses for sections 922(g)(1) and 924(e).

Contrary to Collins' assertion, consideration of the amended statute in determining whether he could lawfully possess firearms is not in conflict with Cardwell. In Cardwell, we considered whether section 921(a)(20) refers to the state of the law at the time of the offense for which defendant is currently being prosecuted, or at the time of the restoration. We held that the plain meaning of "expressly provides" in section 921(a)(20) requires the court to determine what rights exist at the time restoration is granted, and not at the time of the later offense. 967 F.2d at 1350. Cardwell, therefore, merely establishes that once a felon's rights have been restored for a particular offense, later changes in state law are irrelevant for purposes of section 921(a)(20). Here, we simply add that a felon's rights must be effectively restored to be excluded...