U.S. v. Essig

• Decision Date: 23 June 1993
• Docket Number: No. 92-1514,92-1514
• Citation: 10 F.3d 968
• Parties: UNITED STATES of America, v. James A. ESSIG, Appellant. . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 968

10 F.3d 968

UNITED STATES of America, v. James A. ESSIG, Appellant.

No. 92-1514.

United States Court of Appeals Third Circuit.

Submitted Under Third Circuit Rule 12(6)

June 23, 1993.

Decided Nov. 1, 1993.

Sur Petition for Rehearing

Jan. 5, 1994.

Michael J. Rotko, U.S. Atty., Walter S. Batty, Jr., Asst. U.S. Atty. Chief of Appeals, Roland B. Jarvis, Asst. U.S. Atty., Office of U.S. Atty., Philadelphia, PA, for appellee.

Louis J. Fanti, Law Office of Louis J. Fanti, Philadelphia, PA, for appellant.

Present: STAPLETON, MANSMANN and HUTCHINSON, Circuit Judges.

OPINION OF THE COURT

HUTCHINSON, Circuit Judge.

James A. Essig ("Essig") appeals an order of the United States District Court for the Eastern District of Pennsylvania denying his petition under 28 U.S.C.A. Sec. 2255 (West 1971) for relief from a federal criminal conviction. ¹ Essig says he was improperly convicted of making a false statement in an application to purchase a firearm from a registered dealer, a violation of 18 U.S.C.A. Sec. 922(a)(6) (West Supp.1993). ² His appeal raises three important issues of first impression in this Court, one procedural and two substantive. They are: (1) whether this Court should consider issues a counseled appellant raises pro se under the circumstances of this case; (2) what constitutes a restoration of "civil rights" within the meaning of the provision in the Firearms Owners' Protection Act of 1986, 18 U.S.C.A. Sec. 921(a)(20) (West Supp.1993) which restores a convict's right to possess a firearm; and (3) whether the Sentencing Reform Act overrules this Court's holding in United States v. Baylin, 696 F.2d 1030 (3d Cir.1982) and Diggs v. United States, 740 F.2d 239 (3d Cir.1984) that United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1984) cause We hold as follows: (1) for the reasons set forth in Part IV-A, infra, that an appellate court has discretion, in the interest of judicial efficiency, to consider the pro se arguments of a counseled appellant and should exercise it under the peculiar circumstances that exist here; (2) for the reasons set out in Part IV-B, infra, that the federal Firearms Act's prohibition against possession of a firearm by a person convicted of a state crime punishable by a term of imprisonment of more than two years or a federal crime punishable by a term of imprisonment of more than one year is a disability that is not removed unless the convicting state has restored all the convict's civil rights, including the right to serve as a juror; and (3) for the reasons set forth in Part V, infra, that the Sentencing Reform Act overrules our holding in Baylin and Diggs that Frady 's cause and prejudice standard does not apply on collateral review of sentencing errors under Sec. 2255.

and prejudice standard does not apply to collateral review of sentencing errors.

Accordingly, after consideration of all of Essig's arguments, we conclude that the order of the district court should be affirmed.

I.

Essig claims he is entitled to relief under Sec. 2255 because the district court imposed his June 19, 1991, eight-month sentence for a federal firearms offense in violation of law. ³ The June 19, 1991, conviction followed Essig's March 18, 1991, guilty plea to making a false statement in his application to purchase a firearm from a licensed dealer. Essig entered his guilty plea pursuant to a January 27, 1991, plea agreement. He had counsel throughout the criminal proceedings, but he did not appeal his conviction and he did not object in the sentencing court to the calculation of his sentence under the United States Sentencing Guidelines or to the Presentence Investigative Report on which it was based.

The false statement that Essig made was his denial of a Pennsylvania conviction for corrupting the morals of a minor. That conduct violated section 6301(a) of that state's criminal code. 18 Pa.Cons.Stat.Ann. Sec. 6301(a) (1983). A violation of section 6301(a) is a misdemeanor of the first degree. ⁴ In Pennsylvania, misdemeanors of the first degree subject the offender to a maximum term of five years in prison. See 18 Pa.Cons.Stat.Ann. Sec. 1104(1). ⁵ The state court gave Essig two years probation.

The district court fully explained the pending federal charges to Essig before it accepted

                his guilty plea and Essig acknowledged that his violation of Sec. 922(a)(6) was knowing.  Proceeding pro se in the district court on his subsequent Sec. 2255 petition, Essig argued that his state conviction for corrupting the morals of a minor was not a "felony" and therefore not a serious enough crime to require disclosure on his application for the purchase of a .357 Magnum Ruger revolver.  At its core, Essig's argument that his failure to disclose his state conviction for corrupting the morals of a minor was not serious enough to subject him to criminal liability under Sec. 922(a)(6) depends on whether that conviction was material to his right to receive a firearm. 6  Arguably, it would not be material if the state crime he omitted from his application was not a crime that prohibited him from receiving a firearm under federal law
                

II.

At first glance, the text of Sec. 922(g)(1) appears to doom Essig's argument on materiality. ⁷ As we shall soon see, however, the words of Sec. 922(g)(1) do not always mean what they say. For instance, Sec. 921(a)(20) provides in relevant part:

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

. . . . .

(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

....

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.

18 U.S.C.A. Sec. 921(a)(20) (West Supp.1993) (emphasis added). Though Sec. 922(g)(1) makes it unlawful for a person "convicted in any court, of a crime punishable by imprisonment for more than one year" (emphasis added) to "receive [a] firearm," Sec. 921(a)(20)(B) necessarily limits the phrase "any court" to "any court except a state court" unless we are willing to say "one year" means "two years." ⁸

Any potential one year/two year conflict between Sec. 922(g)(1) and Sec. 921(a)(20)(B) has no adverse effect on Essig because his state conviction is punishable by imprisonment for up to five years. ⁹ In reaching its conclusion that Essig had not raised a cognizable claim under 28 U.S.C.A. Sec. 2255, the district court thoroughly reviewed the record surrounding Essig's Sec. 922(a)(6) guilty plea and sentence. It found that Essig was fully aware of his Pennsylvania conviction for corrupting the morals of a minor at the time he gave the sworn statement federal law required before he could purchase the revolver. Based on an admission said to be mentioned in the probation officer's Presentence Investigative Report Section 922(g)(1) makes no reference to "felonies" but instead 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 receive a firearm. ¹¹ Essig's statement that he had not been convicted of such a crime thus seems to be a false statement that is material under Sec. 922(a)(6) and section 8(B) of Form 4473, the application the Secretary of the Treasury requires prospective purchasers of firearms to sign. In this appeal, however, Essig, now with counsel, rings some changes on that argument, which demonstrate that there is not much about this case that is simple.

on Essig, the district court also found that he had been convicted of several other crimes punishable by imprisonment for a term exceeding one year. ¹⁰

III.

We deal first with counsel's contention that Essig's state conviction did not deprive him of the right to possess a firearm. Perhaps recognizing the difficulty that an argument based solely on the distinction between "felony" and "misdemeanor" poses. Essig's counsel on this appeal contends that the Pennsylvania crime of corruption of the morals of a minor is not a crime that should have any effect on Essig's right to possess a firearm because the state court granted Essig probation instead of subjecting him to imprisonment under state law for more than "one year." Counsel concedes "a crime punishable by imprisonment for a term exceeding one year" is a crime for which the maximum permissible sentence, rather than time actually served, is more than one year under presently controlling case law. ¹² Nevertheless, he advances a "good faith argument" for reconsideration of this question based on what he perceives as an ambiguity in Sec. 922. Counsel argues as follows: Section 922 is ambiguous because it does not use the term "maximum sentence." Moreover, Sec. 921(a)(20) creates an exception to the prohibitions of Sec. 922 when a defendant's civil rights have been restored. ¹³ This exception indicates that Congress intended to sanction only dangerous offenders, not unintentional technical violators. Thus, counsel contends, the term "punishable" in Sec. 921(a)(20) means actually "punished" by a year or more of incarceration. Because Essig was not actually sentenced to a year or more in prison, counsel contends that Essig is only a technical violator within the terms of Secs. 921(a)(20) and 922(a)(6).

The United States Supreme Court's decision in Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983), overruled on other grounds by Firearms Owners' Protection Act of 1986, 18 U.S.C.A. Sec. 921(a)(20), controls this issue. In Dickerson, the Court noted that under Sec. 922(g), "[i]t was plainly irrelevant to Congress whether the individual in question actually receives a prison term; the statute...