U.S. v. Gray

• Decision Date: 12 November 1982
• Docket Number: No. 82-1246,82-1246
• Citation: 692 F.2d 352
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jeffery Paul GRAY, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 352

692 F.2d 352

UNITED STATES of America, Plaintiff-Appellee, v. Jeffery Paul GRAY, Defendant-Appellant.

No. 82-1246

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Nov. 12, 1982.

Danny D. Burns, Fort Worth, Tex., for defendant-appellant.

Gerhard Kleinschmidt, Asst. U.S. Atty., Fort Worth, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before GEE, RANDALL and TATE, Circuit Judges.

GEE, Circuit Judge:

Our opinion in this criminal appeal comprises two parts. The issues treated in Part II are of no precedential value and are matters of concern to the parties only. Hence, Part II will not be published.

I.

Appellant Gray was convicted of burglary, a felony, by a Texas court in 1972 and received a probated sentence. Upon his successful completion of probation, the judgment of conviction was, in accordance with Texas law, set aside and the prosecution dismissed. His present appeal is from a recent conviction on two counts: (1) possession of an automatic firearm and (2) possession of a firearm by a convicted felon. In the unpublished portion of our opinion we reject his appeal from the conviction on Count 1. In this portion, we consider his claim that because his former conviction of burglary was set aside pursuant to state law he was not a convicted felon subject to prosecution on Count 2.

Section 7 of article 42.12, Tex.Code Crim.Proc. (Vernon), provides in part that after a defendant has successfully completed his period of probation, the court

shall dismiss the accusation, complaint, information, or indictment against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted or to which he has pleaded guilty, except that proof of his said conviction or plea of guilty shall be made known to the court should the defendant again be convicted of any criminal offense.

See Payton v. State, 572 S.W.2d 677, 678-79 (Tex.Cr.App.1978).

Section 1203 of Title 18 App., U.S.C., provides exemptions from Sec. 1202 for prison "gun trusties" and for "any person who has been pardoned by the President of the United States or the chief executive of a State and has expressly been authorized by the President or such chief executive, as the case may be, to receive, possess, or transport in commerce a firearm " (emphasis added). We have held that, to provide exemption from Sec. 1202, any state pardon granted after 1968 (the year the Gun Control Act became law) must expressly restore the right to bear arms. United States v. Matassini, 565 F.2d 1297, 1307-08 (5th Cir. 1978). See also Diaz v. Chasen, 642 F.2d 764 (5th Cir. 1981) (automatic pardon granted upon completion of sentence for first Louisiana felony conviction does not deprive Commissioner of Customs of the authority to revoke a customhouse cartman's license).

Two circuits have held that automatic expungement statutes similar to, and in some cases more restrictive than, Texas's art. 42.12, do not exempt one convicted of a felony from liability under Sec. 1202. See United States v. Bergeman, 592 F.2d 533, 535-37 (9th Cir. 1979) (Idaho statute similar to Sec. 42.12); United States v. Herrell, 588 F.2d 711, 713 (9th Cir. 1978), cert. denied, 440 U.S. 964, 99 S.Ct. 1511, 59 L.Ed.2d 778 (1979) (Arizona statute provides that the expunged conviction can be proved in any subsequent prosecution); United States v. Potts, 528 F.2d 883, 885 (9th Cir. 1975) (Washington statute similar to Arizona's); United States v. Kelly, 519 F.2d 794, 796 (8th Cir.), cert. denied, 423 U.S. 926, 96 S.Ct. 272, 46 L.Ed.2d 254 (1975) (Minnesota statute similar to Arizona's); but cf. New Banner Institute, Inc. v. Dickerson, 649 F.2d 216, 219-21 (4th Cir. 1981), cert. granted, --- U.S. ----, 102 S.Ct. 1708, 72 L.Ed.2d 132 (1982) (Iowa conviction of corporate licensee's board chairman which had been unconditionally and absolutely expunged did not disqualify corporation from being a licensed firearms dealer under 18 U.S.C. Sec. 923(c)).

However, this court and two other circuits have held that when a conviction has been vacated pursuant to the Youth Corrections Act, the defendant is not a "felon" for purposes of Sec. 1202. United States v. Arrington, 618 F.2d 1119, 1122-24 (5th Cir. 1980); United States v. Purgason, 565 F.2d 1279, 1280-81 (4th Cir. 1977); United States v. Fryer, 545 F.2d 11, 13-14 (6th Cir. 1976).

The Supreme Court recently held that an extant prior state felon conviction which may be subject to collateral attack under Gideon v. Wainwright can be used as a predicate for a subsequent conviction for possession of a firearm in violation of Sec. 1202(a)(1). Lewis v. United States, 445 U.S. 55, 65, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980). The Court stated that the disability can be removed only "by a qualifying pardon or the Secretary's consent," pursuant to Sec. 1203, or by challenging the prior conviction in the state courts. 445 U.S. at 64, 100 S.Ct. at 920. The Court observed:

An examination of Sec. 1202(a)(1) reveals that its proscription is directed unambiguously at any person who "has been convicted by a...