U.S. v. Eaton

• Decision Date: 12 July 1994
• Docket Number: No. 94-30001,94-30001
• Citation: 31 F.3d 789
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Wayne EATON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 789

31 F.3d 789

UNITED STATES of America, Plaintiff-Appellee, v. Michael Wayne EATON, Defendant-Appellant.

No. 94-30001.

United States Court of Appeals Ninth Circuit.

Submitted July 12, 1994 ^*.

Decided July 26, 1994.

Julio K. Morales, Missoula, MT, for defendant-appellant.

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

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

Before: GOODWIN, D.W. NELSON, and HALL, Circuit Judges.

D.W. NELSON, Circuit Judge:

Michael Wayne Eaton appeals his conviction and sentence under 18 U.S.C. Sec. 922(g)(1), which makes it unlawful for a felon convicted of a crime punishable by more than one year of imprisonment to "knowingly possess in or affecting commerce any firearm or ammunition." Eaton contends that he is not a felon within the meaning of 18 U.S.C. Sec. 922(g)(1) because Montana restored his civil rights after he completed his North Dakota sentence. In the alternative, Eaton argues that his sentence is excessive and that he is entitled either to an additional reduction for acceptance of responsibility under U.S.S.G. Sec. 3E1.1(b)(2) or to straight probation based on the exception for "single acts of aberrant behavior" under U.S.S.G., Ch. 1, Pt. A, intro., 4(d). We affirm.

BACKGROUND

On April 10, 1986, Eaton was convicted of felony robbery in Cass County District Court, Fargo, North Dakota. He was sentenced to serve 24 months, with the last 18 months suspended. Eaton's probation subsequently was transferred from North Dakota In late August 1992, Eaton purchased a .44 caliber revolver from Robert Carter in Kalispell, Montana. He subsequently resold it to the Yankee Trader and Pawn Broker in Whitefish, Montana. A grand jury indicted Eaton for a violation of 18 U.S.C. Sec. 922(g)(1) on June 17, 1993. The indictment alleged that Eaton, having been convicted of a crime punishable by imprisonment for a term exceeding one year, "did knowingly possess and effecting [sic] in commerce a firearm."

to Montana, and on December 11, 1987 he was released from probation.

Eaton filed a motion to dismiss the indictment on the ground that his civil rights had been restored by operation of Montana law when he completed his North Dakota sentence, thus excluding him from the definition of "convicted felon" in Sec. 921(a)(20). Montana has constitutional and statutory provisions that automatically restore all civil rights upon completion of supervision for any offense. Mont. Const., art. II, Sec. 28 (1970); Mont.Code Ann. Sec. 46-18-801(3). Eaton was a citizen of Montana at the time of the Sec. 922(g)(1) violation.

North Dakota, however, does not restore the right to possess a firearm as quickly as Montana. Even if a felon's civil rights have been substantially restored under N.D.Cent.Code Sec. 12.1-33-01(1), North Dakota law still prohibits a person who has been convicted of a felony involving violence from owning a firearm or from having one in his possession or under his control for ten years from the date of his release from incarceration or probation. N.D.Cent.Code Sec. 62.1-02-01(1). Under N.D.Cent.Code Sec. 12.1-22-01, robbery involving a dangerous weapon is a class B felony. Therefore, Eaton would not have regained the right to possess a firearm under North Dakota law until December 11, 1997, more than four years after the conduct at issue in this case.

On August 27, 1993, the district court denied Eaton's motion to dismiss, and a jury subsequently found Eaton guilty of violating Sec. 922(g)(1), 859 F.Supp. 421. Eaton then filed objections to the presentence investigation report, including his claim that he is entitled to a downward departure to probation based on the "single act of aberrant behavior" exception. At sentencing the district court departed downward from the presentence report base offense level of 20 to a base offense level of 11, awarded Eaton a two-point reduction for acceptance of responsibility for a total offense level of 9, and then sentenced him to the maximum within that range: 12 months in prison followed by 3 years of supervised release. The court also ordered Eaton to reimburse the government for attorney's fees and costs in lieu of a fine.

Eaton filed a timely appeal from the denial of the motion to dismiss and from his conviction and sentence. We have jurisdiction under 28 U.S.C. Sec. 1291.

DISCUSSION

I. Restoration of Civil Rights

A. Standard of Review

Whether to dismiss an indictment is an exercise of the district court's supervisory powers reviewed for abuse of discretion. United States v. Garza-Juarez, 992 F.2d 896, 905 (9th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 724, 126 L.Ed.2d 688 (1994). We review questions of statutory interpretation de novo. United States v. Valencia-Roldan, 893 F.2d 1080, 1082 (9th Cir.), cert. denied, 495 U.S. 935, 110 S.Ct. 2181, 109 L.Ed.2d 509 (1990).

B. Analysis

Eaton argues that his civil rights were restored by operation of Montana law upon completion of his North Dakota sentence, and that, therefore, his prior offense no longer constitutes a "conviction" within the meaning of Sec. 921(a)(20). Eaton relies on United States v. Geyler, 932 F.2d 1330 (9th Cir.1991) [hereinafter Geyler I ], reh'g denied, 949 F.2d 280 (9th Cir.1991) [hereinafter Geyler II ]. In Geyler I, we construed Sec. 921(a)(20), which provides:

What constitutes a conviction of such 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 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 We reasoned in Geyler I that the reference in the first sentence to the law of the convicting jurisdiction ("choice-of-law clause") is unrelated to the clause in the second sentence regarding the restoration of civil rights ("exemption clause"). 932 F.2d at 1334. Accordingly, we concluded that a state's restoration of civil rights to an individual previously convicted of a felony in federal court could operate to exclude that felon from the class of persons subject to Sec. 922(g)(1). ¹

The Supreme Court recently overturned Geyler I and held that felons convicted of possession of a firearm under Sec. 922(g)(1) can take advantage of the exemptions in Sec. 921(a)(20) only if their "civil rights have been restored under federal law (the law of the jurisdiction in which the earlier proceedings were held)." Beecham v. United States, --- U.S. ----, ----, 114 S.Ct. 1669, 1671, 128 L.Ed.2d 383 (1994) (emphasis added). In Beecham, the predicate felony was also a prior federal conviction rather than, as here, a prior state conviction in a different state. Although the Court did not specifically address how the federal courts should approach prior state law convictions under Sec. 921(a)(20), the logic of Beecham compels the conclusion that the convicting state jurisdiction controls restoration of civil rights for purposes of the statute. The Court decided that the choice-of-law clause in Sec. 921(a)(20) is logically read to apply to the exemption clause. Id. at ----, 114 S.Ct. at 1671. According to the Court's reasoning, "[a]sking whether a person has had civil rights restored is thus just one step in determining whether something should 'be considered a conviction.' By the terms of the choice-of-law clause, this determination is governed by the law of the convicting jurisdiction." Id.

Given the Supreme Court's conclusion that the choice-of-law clause and the exemption clause in Sec. 921(a)(20) should be read together, we must reject Eaton's claim that Montana law can remove the disability of a North Dakota conviction. This result, moreover, is consistent with United States v. Dahms, 938 F.2d 131 (9th Cir.1991), and Geyler II. In Dahms, the defendant had been convicted of a felony in Michigan and then prosecuted for possession of a firearm in Montana in violation of 18 U.S.C. Sec. 922(g)(1). In dicta, the Dahms court suggested that where the predicate felony conviction is in state court, the convicting jurisdiction controls the question of civil rights restoration. See 938 F.2d at 133 ("The first sentence of Sec. 921(a)(20) dictates that the law of the state in which the felon was initially convicted governs the applicability of Sec. 922(g)(1).") (citing United States v. Gomez, 911 F.2d 219 (9th Cir.1990)). As Eaton points out, Dahms never raised the question of whether his civil rights had been restored under Montana law. The government correctly counters, however, that the case reveals the Ninth Circuit's intention to look to the convicting state's civil rights restoration procedures to determine the applicability of federal firearms laws.

Upon denial of the government's petition for rehearing in Geyler II, this court also indicated in dicta that it would be inclined to a different result if the convicting jurisdiction were a state court: "[A] rule [specifically referring to the law of the convicting jurisdiction as controlling rights restoration] may have significant practical effect where state B purports to restore the rights of a felon convicted in state A but state A's laws ban any restoration of the right to possess weapons...." 949 F.2d at 283. The implied rule in both Dahms and Geyler II is consistent with extending the Supreme Court's reading of Sec. 921(a)(20) to rights restoration following a predicate offense conviction in state court.

Accordingly, we hold that the district court properly denied Eaton's motion to dismiss. 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.

II. Application of the Sentencing Guidelines

A. Standard of Review

The district court's discretionary refusal to depart from the Sentencing...