U.S. v. Glaser

• Decision Date: 26 January 1994
• Docket Number: No. 93-1680,93-1680
• Citation: 14 F.3d 1213
• Court: U.S. Court of Appeals — Seventh Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard R. GLASER, Defendant-Appellant.

Page 1213

14 F.3d 1213

UNITED STATES of America, Plaintiff-Appellee, v. Richard R. GLASER, Defendant-Appellant.

No. 93-1680.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 17, 1993.

Decided Jan. 26, 1994.

John W. Vaudreuil, Asst. U.S. Atty., Madison, WI (argued), for U.S.

Robert A. Christensen, Madison, WI (argued), for Richard R. Glaser.

Before PELL, CUDAHY, and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

No one who has been convicted of a "crime punishable by imprisonment for a term exceeding one year" may possess a firearm. 18 U.S.C. Sec. 922(g). For a three-time loser, the penalty is a minimum of 15 years without possibility of parole. 18 U.S.C. Sec. 924(e)(1). Richard Glaser pleaded guilty to possessing a firearm despite previous convictions. The conditional plea reserved the right to contest on appeal the application of the 15-year minimum, which applies only to persons who have "three previous convictions ... for a violent felony or a serious drug offense." Glaser has been convicted of committing at least four burglaries in Minnesota, "violent felonies" under the definition Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), supplies for that term. But the convictions count toward the necessary three only if they satisfy 18 U.S.C. Sec. 921(a)(20), which makes the identification of a "crime punishable by imprisonment for a term exceeding one year" depend on state law:

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 firearms.

Minnesota routinely restores the civil rights of felons on the way out the jailhouse door. Glaser contends that he therefore lacks the three convictions necessary to support the 15-year penalty.

Some states automatically restore an ex-prisoner's civil rights after the passage of time but do not notify the prisoner of this. We concluded in United States v. Erwin, 902 F.2d 510 (7th Cir.1990), that such statutes erase the "conviction" for federal purposes only if state law fully restores the ex-prisoner's right to possess weapons: when the restoration of civil rights occurs entirely by virtue of the statute books, other enacted statutes constitute express restrictions on the scope of the restoration. Things are different, we explained, when a state sends the former prisoner a document informing him that his civil rights have been restored--unless, in the language of the statute, "such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms" (emphasis added):

The notice rule is designed not for statutes ... that return the right to vote and cut hair but for communications that seem to have broader import. If, for example, the governor issues a pardon that by virtue of state law does not restore the right to carry guns, then unless the state tells the felon this the federal government will not treat him as convicted. The second sentence of Sec. 921(a)(20) is an anti-mouse-trapping rule. If the state sends the felon a piece of paper implying that he is no longer "convicted" and that all civil rights have been restored, a reservation in a corner of the state's penal code can not be the basis of a federal prosecution. A state must tell the felon point blank that weapons are not kosher. The final sentence of Sec. 921(a)(20) cannot logically mean that the state may dole out an apparently-unconditional restoration of rights yet be silent so long as any musty statute withholds the right to carry guns. Then the state never would need to say a peep about guns; the statute would self-destruct. It must mean, therefore, that the state sometimes must tell the felon that under state law he is not entitled to carry guns, else Sec. 922(g) does not apply.

902 F.2d at 512 (emphasis in original).

Three of Glaser's burglary sentences, imposed in 1983 and served concurrently, expired in 1986. On releasing him, Minnesota gave Glaser this certificate, preprinted except for the underlined personal details, which were typed in:

This is to certify that Richard Raymond Glaser, who was on the 20th day of May, 1983, sentenced to the Commissioner of Corrections by the District Court of Washington; Washington County, has completed such sentence and is hereby discharged this 17th day of June, 1986; and that pursuant to Minnesota Statutes, Section 609.165 the said Richard Raymond Glaser is hereby restored to all civil rights and to full citizenship, with full right to vote and hold public office, the same as if such conviction had not taken place.

*NOTE: Be advised that this certificate does not relieve you of the disabilities imposed by the Federal Gun Control Act.

The information was not altogether accurate. Although the certificate tracks the language of Minn.Stat. Sec. 609.165 in stating that "all civil rights" are restored "as if such conviction had not taken place", a law enacted after Sec. 609.165 provides that a person convicted within the last 10 years, in Minnesota or elsewhere, may not possess a pistol. Minn.Stat. Sec. 624.713(1)(b). The paragraph beginning " *NOTE" has independent problems. There is no "Federal Gun Control Act." Sections 921 to 928 of the criminal code originated in Title IV of the Omnibus Crime Control and Safe Streets Act of 1968 and have been amended, moved, and recodified; Sec. 921(a)(20) was added by Sec. 101 of the curiously titled Firearms Owners' Protection Act of 1986, Pub.L. 99-308, 100 Stat. 449 (May 19, 1986). Many other federal laws affect the possession, sale, and use of firearms; the certificate does not distinguish among them.

Glaser returned to his profession. Soon he was back in prison. Between his release in 1986 and his new conviction in 1988, Minnesota amended Sec. 609.165(1a), which now provides that an order discharging a probationer from custody or restoring a prisoner's civil rights "must provide that a person who had been convicted of a crime of violence ... is not entitled to ship, transport, possess, or receive a firearm until ten years have elapsed since the person was restored to civil rights". This law is designed to furnish the "express" notice required by Sec. 921(a)(20). State v. Moon, 463 N.W.2d 517, 519 (Minn.1990). Apparently no one told the Commissioner of Corrections. When the state let Glaser out in 1990, he received the same certificate as in 1986, this time omitting the note about federal law. It was even less accurate than before. ¹

Glaser's argument is straightforward. Each time Minnesota let him go, the state tendered a certificate restoring his civil rights. Neither certificate "expressly provides that [he] may not ship, transport, possess, or receive firearms." 18 U.S.C. Sec. 921(a)(20). The district court did not stop here, however. It concluded that Minnesota statutes expressly limit felons' entitlement to possess guns--pistols when Glaser was released in 1986, all guns when he was set free in 1990--and that these statutes are equivalent to notice in the certificate. Although the Supreme Court of Minnesota remarked in Moon that until Sec. 609.165(1a) added the 10-year restriction in 1987 "federal law enforcement officials could ... [not] enforce the federal firearms restriction against persons convicted of felonies in Minnesota who had been restored to civil rights", 463 N.W.2d at 519, a panel of the eighth circuit treated this as dictum and held that the pistol statute made Minnesota convictions available as predicate felonies under federal law, despite silence in certificates restoring civil rights. United States v. Ellis, 949 F.2d 952, 955 (8th Cir.1991); see also United States v. Traxel, 914 F.2d 119 (8th Cir.1990). Glaser contended that the eighth circuit's approach conflicts with Erwin; the district court responded: "I view the interpretation of the Minnesota statutes by the Eighth Circuit as binding on a district court in another circuit."

Nothing the eighth circuit decides is "binding" on district courts outside its territory. Opinions "bind" only within a vertical hierarchy. A district court in Wisconsin must follow our decisions, but it owes no more than respectful consideration to the views of other circuits. Colby v. J.C. Penney Co., 811 F.2d 1119, 1123 (7th Cir.1987). On questions of state law, any conflict between the views of the state's highest court and those of a federal court must be resolved in favor of the state's understanding of its law. Cf. Salve Regina College v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991). The passage we have quoted from Moon was not, however, an interpretation of state law. Whether a particular statement in the statute books or a certificate satisfies the "unless" clause of Sec. 921(a)(20) is a question of federal law, on which Moon announced one view and Ellis another. The district court was entitled to reach an independent conclusion, as are we.

Traxel, the eighth circuit's first encounter with the interaction between Sec. 921(a)(20) and Minnesota law, did not discuss the effect of the certificate Minnesota hands to discharged prisoners. United States v. Davis, 936 F.2d 352 (8th Cir.1991), took up the case of a prisoner who received the same printed form handed to Glaser in 1986. The court recognized that Sec. 921(a)(20) asks whether a certificate contains an "express" provision "that the person may not ship, transport, possess, or receive firearms." The 1986 version of Minnesota's certificate met the standard, Davis held, because of the note about federal law:

This explicit notice to Davis...