U.S. v. Erwin, 89-3502

• Decision Date: 07 May 1990
• Docket Number: No. 89-3502,89-3502
• Citation: 902 F.2d 510
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Ray ERWIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 510

902 F.2d 510

UNITED STATES of America, Plaintiff-Appellee, v. James Ray ERWIN, Defendant-Appellant.

No. 89-3502.

United States Court of Appeals Seventh Circuit.

Argued April 11, 1990.

Decided May 7, 1990.

David E. Risley, Office of the U.S. Atty., Springfield, Ill., for plaintiff-appellee.

Michael B. Metnick, D. Peter Wise, Metnick & Barewin, Springfield, Ill., for defendant-appellant.

Before WOOD, Jr., EASTERBROOK, and KANNE, Circuit Judges.

EASTERBROOK, Circuit Judge.

We must decide whether a felon whose "civil rights" were restored automatically at the end of his sentence--but who under state law may not own a gun--stands convicted of a crime for purposes of 18 U.S.C. Sec. 921(a)(20). If he does, then he is exposed to the special punishment Congress ordered in 18 U.S.C. Secs. 922(g) and 924(e) for persons who possess a gun despite three prior convictions for violent felonies. The district judge concluded that a person who may not possess guns under state law remains a convicted felon even though other civil rights have been restored. 723 F.Supp. 1285 (C.D.Ill.1989). He sentenced James Ray Erwin to 25 years' imprisonment, a sentence for which Sec. 924(e) bars release on parole.

Section 921(a)(20) defines convictions for purposes of the three-prior-conviction crime in Sec. 922(g). The current version of Sec. 921(a)(20) responds to Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983), which held that federal law supplies the definition of a conviction. Defendant in Dickerson pleaded guilty under an arrangement by which the state withheld a jail sentence and wiped the record clean if a time passed without incident. Because the defendant admitted his guilt and bore some punishment (if only restitution), the Court concluded that he had been convicted under the federal definition. Section 921(a)(20) as amended in 1986 requires courts to employ the state's own view of its convictions:

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 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.

The question at hand is whether the second sentence overrules the first--whether the second sentence means that a person to whom a state restores any civil rights is no longer deemed convicted even though "the law of the jurisdiction in which the proceedings were held" considers him to be a convicted felon. States commonly restore some civil rights, such as the right to vote, even though they withhold others, such as the right to possess weapons. If the restoration of any one civil right automatically triggers the second sentence, then states either must give the "express[ ]" notice to which the sentence refers, or the effect of Secs. 922(g) and 924(e) will be substantially undone.

Illinois, like many other states, restores some civil rights automatically (and without notice to the released prisoner) and others only on express decision. Erwin has not been pardoned or otherwise singled out for clemency. The state statute that gives rise to Erwin's claim is Ill.Rev.Stat. ch. 38 p 1005-5-5, which provides:

(a) Conviction and disposition shall not entail the loss by the defendant of any civil rights, except under this Section and Sections 29-6 and 29-10 of The Election Code, as now or hereafter amended.

(b) A person convicted of a felony shall be ineligible to hold an office created by the Constitution of this State until the completion of his sentence.

(c) A person sentenced to imprisonment shall lose his right to vote until released from imprisonment.

(d) On completion of sentence of imprisonment ... all license rights and privileges granted under the authority of this State which have been revoked or suspended because of conviction of an offense shall be restored unless the authority having jurisdiction of such license rights finds after investigation and hearing that restoration is not in the public interest. This paragraph (d) shall not apply to the suspension or revocation of a license to operate a motor vehicle under the Illinois Vehicle Code.

So the felon automatically recovers his rights to vote and hold office, together with any "license rights and privileges" suspended on conviction (such as a license to be a barber), unless the licensing authority vetoes the restoration for good reasons. Illinois does not wipe out the conviction for purposes of its recidivist laws. It also does not restore the right to own or carry guns. Ill.Rev.Stat. ch. 38 p 24-1.1 makes it a crime for a previously convicted felon to possess a firearm.

Erwin contends that p 1005-5-5(d) restores his civil rights for purposes of Sec. 921(a)(20). Because p 1005-5-5 does not "expressly provide[ ] that [he] may not ship, transport, possess, or receive firearms", Erwin argues, the last sentence of Sec. 921(a)(20) means that he is not a convicted felon for federal purposes even though Illinois still considers him one. Although this is a clever argument, it is not a plausible interpretation of a statute that is designed to require federal rules to track state law. Erwin wants us to restore the gap between federal and state rules that Dickerson opened and Congress closed--although Erwin believes that the distinction...